The Judge & Company – Questions for Judge Posner from Judges, Law Professors & a Journalist

 

Here is another in the truly remarkable series of articles written by Professor Ronald K. L. Collins for Concurring Opinions on Judge Posner.  Again, I am fascinated and urge readers to carefully review the piece.

This time law professors, judges and a journalist question Judge Posner on all manner of subjects, and he answers those questions.  The questions are broad ranging and Posner’s answers are sometimes provocative, other times candid, and all worth thinking about.

Here are three examples.  I would be especially interested in knowing what readers of this blog think about these questions and answers or any of the others questions and answers.

V. Law & Economics

Professor Michael Dorf: I detect in your academic work (and to a lesser extent your work as a judge) a gradual drift from an economic analysis of law to pragmatism more broadly. Do you agree with that assessment, and if so, what do you think accounts for it?

[RC: Professor Dorf wrote the biographical entry on Judge Posner for the Yale Biographical Dictionary of American Law (2009).]

Judge Posner: You’re correct. It is partly a result of the inroads that psychology has made on economic analysis, partly a result of the economic profession’s failure to understand finance and monetary policy in the period leading up to the crash of 2008, and (relatedly) the revelations of unexpected extensive greed and corruption in American business, not limited to the financial industry.

[RGK note: Posner’s comment about psychology are, I think, very important.]

Next, consider this exchange about the “record”:

VI. The Record of a Case

Professor Frederick Schauer: You tend to go beyond the record, the briefs, and oral argument more often than most appellate judges, and you have noted that you have been criticized for it. Could you explain your practice, explain the criticism, and explain why you think the criticism misses the mark?

Judge Posner: I find that the briefs and arguments, and lower-court opinions, very often do not answer the questions that I think are important to a sound understanding of the case. So, I look for the answers, often by an Internet search. I tell lawyers if you don’t like me doing that, do it yourselves. I do try to be sensitive to risk of error in judicial fact research. I understand the criticism, because the lawyers want to control the case. They invoke the glories of the adversary system. I think the adversary system is overrated. Not that I want to convert to the inquisitorial system that prevails in Europe (except the U.K.) and most of the rest of the world, but I want to see the adversary system taken down a peg. I am a big fan of Fed. R. Evid. §706, which allows a judge to appoint his own expert witness, as opposed to having to depend entirely on party experts.

Finally, for you criminal law folks,

XX. The Fourth Amendment Exclusionary Rule

Professor Yale Kamisar: Many years ago, before becoming a federal judge, you wrote an article forcefully criticizing the Fourth Amendment exclusionary rule. Do you still feel the same way about the search and seizure exclusionary rule today?

Judge Posner: Yes, especially with the emergence of really effective federal tort remedies for unreasonable searches or seizures. That is far superior to excluding what is often highly probative evidence.

[RC: For a listing of some of Judge Posner’s judicial opinions re the exclusionary rule, go here (and search “exclusionary rule”)]

I look forward to your thoughts.

RGK

25 responses

  1. Good morning Judge,

    Okay, I’ll bite:

    V. Law and Economics- I’m a big fan of Judge Posner’s books. In fact I’ve just been staring across the room right looking at Frontiers of Legal Theory; Law, Pragmatism and Democracy; The Problems of Jurisprudence; and the Law of Literature. I’ve found that its a good idea to have Judge Posner’s books prominently displayed in the office (it can make people think you’re smarter than you actually are), but I have actually gone through these. I have often wondered if Judge Posner is really more of a formalist, rather than a pragmatist. I haven’t yet fully worked out what I think that may mean, but the law and economics model has its own form and can itself be used mechanically.

    VI. The Record of a Case- I’m intrigued with Judge Posner’s idea regarding Fed. R. Evid. Section 706 which allows a judge to appoint his or her own expert witness. I think that can be a good idea. But I wonder if a judge can, or should be his own expert witness in a matter pending before the court. Over the summer I read Noah Messing’s book The Art of Advocacy ( one of the best out there, I can’t speak highly enough of this book)-some of the examples given there are briefs full of quotes from newspaper articles and websites (outside of the record). I have briefed a lot of appeals in both state and federal courts, I’ve never done this. Maybe I was wrong. The examples in Noah Messing’s book were well done, and in the Posner spirit.

    XX. The Exclusionary Rule- I remember being a second year law student discussing the Fourth Amendment with my father. We were driving, and I can’t remember how we got on the discussion. My dad was a mechanical engineer and not a lawyer. I remember him saying how he didn’t understand the exclusionary rule. If the police officer conducts an illegal search fine the police officer, but don’t exclude the evidence. Being a lawyer I still gravitate towards the exclusionary rule, but my dad was always smarter than I am. Like I tell my two teenagers “remember, always listen to your father he’s always right (no matter what mom says).”

    Another interesting, thought-provoking post. Thanks to one of your posts from last month, I took out the Leviathan to read (someone kept mentioning Hobbes). On Liberty may be on my list next. I never really liked all the philosophy in college, but I’m starting to change my mind. I must have too much time on my hands.

    Ray

  2. Judge, The psychology remark is interesting. Posner’s initial position was that irrationality could not be modeled so it was no help but rather a random surd. A lot of economic work of the transaction cost, new industrial economics folks has been designed to show this is not true, and that many of the problems are not problems of irrationality but of limited rationality, for example framing problems. Akerlof won his Noble for this kind of work. Posner seems less influenced by these trends than from his abandonment of grand theory. Despite the Geneology of Morals, the influence of Continental philosophy is not apparent, but seems to be a genuine rediscoverty of American pragmatism. Posner should also get a Keynes bobble head for the kind words for his lordship in the two books on the recent crash and his recognition that financial markets were very poor candidates for the Washington consensus.
    On the exclusionary rule, if you think its purpose is deterrence, particularly with good faith and no federal habeas, you could doubt it is any real deterence and opt for a civil remedy. Kamisar tended to favor a clean hands rational. He gave a lecture 40 some years ago at Creighton which was published in the law review. His position becomes more defenseable if you read good faith as no real sin. I have become an agnostic with the year.
    On the scope of the record, I wonder if a much of the nonrecord material is what Davis called legislative fact, which are not governed by the integrity of the record and really date back to the Brandeis brief

  3. The essence of the law and economics model is the assumption that human behavior is predictably rational and that people have at least an intuitive (even if inaccurate) sense of how to conduct a cost-benefit analysis. At least within the criminal world, those assumptions are somewhere between probably and grossly wrong much of the time.

    I believe in the adversary system. My sense is that Posner’s open doubts about it mirror the doubts that most judges harbor – even if they acknowledge their doubts even to themselves. The problem is that folks want truth when the best we can offer (it’ll be the best regardless of where the experts come from, nor do I trust judges actually to find unbiased experts) is proof, i.e., what some factfinder believes.

    If we actually had “really effective federal tort remedies for unreasonable searches and seizures,” we could try and figure out whether they obviated the need for exclusionary rules. We don’t. In fact we have almost completely worthless tort remedies for 4th Amendment violations. And we don’t punish officers for violating the constitution. Add that to an increasing distaste for and rejection of the exclusionary rule (which SCOTUS adopted back in 1913 – we’re not talking about some wide-eyed liberal invention, though it was the Warren court that first applied it to the states), and you end up with a system that actively encourages 4th Amendment violations.

  4. Judge The answer to Cunningham’s torts question is very clear on the move to psychology. In terms of his personality, the comment on Eric’s article in Yale LJ strikes me as anything but cold.

  5. The series on Judge Posner has been most interesting; thank you Judge Kopf for bringing it to my attention.

    I own a copy of Economic Analysis of Law (3d ed.). I’ve had it for quite sometime, and, as best I recall, bought it very early in my career when I worked at a corporate law firm and on behalf of clients dealing with regulatory agencies, both state and federal. It occurred to me then that, as applied to tort law, Judge Posner was simply updating with modern social science language the economic efficiency analysis that Learned Hand had raised in the Carroll Towing case. I gather that experience has taught Judge Posner that often people do not act out of economic efficiency or self-interest but by some other impetus.

    As far as going outside the record, I’ve always assumed that judges do this to one degree or another with great regularity, although it is a question of degree. Certainly we would agree that supplementing the record with, for instance, Census Bureau information would be acceptable. It would get trickier, though, for instance, if the supplementation were with a transcript of an expert witness’s testimony in another case. Context and degree it would seem are everything on this question.

    I do not agree that there are viable civil remedies for Fourth Amendment violations that could in any meaningful way supplant the exclusionary rule. Malicious prosecution cases where the plaintiff has been completely exonerated as absolutely innocent are almost impossible given the Qualified Immunity doctrine. The Lane v. Franks decision by the Supreme Court in its last term raises the bar for plaintiffs even higher. Honestly, the idea that someone whose 4th Amendment rights have been violated, and, as a result, evidence of a felony crime recovered, could achieve (achieve being different than pursue) a civil remedy for damages is very much contrary to my experience. Imagine someone whose 4th amendment rights were violated and evidence of child pornography pictures recovered that proposed to pursue a civil claim for damages; as Sixth Circuit Judge Ronald Gilman stated it elegantly in a search and seizure case I had: “there is no way.”

    Judge Posner did suggest Heller v. District of Columbia as among the worst of Supreme Court decisions. I would agree since it appears to have contributed to the further fraying of our social fabric: the fellow in Kroger’s (a grocery in our parts) exercising his “open carry” rights as the Mom with the three small kids pushes her cart past, while taking care that none of the children bump into the proudly and apparently heavily armed fellow, comes to mind. I would add Citizens United to the list. Clinton v Jones was really, really stupid, but it’s nothing now; the others will be a problem for a long, long time and seem likely only to get bigger.

  6. Posner: “If a statute is clear, and constitutional, I am bound.”

    Posner tells us that all federal judges are sociopaths, and it would be strange to think that only he is immune to the temptation.

    Constitutional provisions are constitutional — essentially, by definition. Just try to enforce the Good Behavior Clause — which is both clear and well-defined in English law — in an American court. And that potty nonsense about the Seventh Amendment “preserving” the jury trial? Ask Suja. The 11Am was written out of the Constitution over a century ago. Judges are better than Siegfried and Roy at making the Constitution disappear, and they don’t even need white tigers. About the only provision left standing in the “Bill of Right” is the 3Am, and that is only because we haven’t had a case on it.

    That interview couldn’t get more absurd if the author intended it.

    God, but I would love to ask Posner a few questions, based on his public admissions. Does anyone have his e-mail address?

  7. Crumudgeon, I think you may confuse sociopathology with humanity. We all have a point of view that may color how we view legal issues. Not you of course, but I am made of weaker stuff, maybe the fault of dear old 113.

  8. RGK,
    I can only speak to a few areas in that interview, but it was well worth the time to read it.

    Record:
    Back when I worked in criminal appeals, I had a bad habit of digging every single little bit of information in cases I possibly could out. It bothers the hell out of me that, in a direct appeal, an appellate court will not consider a particular fact because an attorney for appellant didn’t bring it up. That’s just plain nucking futs. I lost grade points in my appellate advocacy class because I included material the professor didn’t find relevant to it (I argued his decision and lost).

    I have never understood an appellate court’s interest in a “concise and relevant record” except for lazyness. Just read the whole damn thing, your honors. It’s what you’re paid for.

    -SLS

  9. Ray, Sorry for the late reply. Doing real work today. I know . . .

    Three quick points:

    1. I am glad to see the Judge Posner acknowledge the importance of psychology as factor in the Law/Econ. movement. That is a factor that has been too little considered. I think the empiricists, looking at how brains actually function, will ultimately find that “rationality” can be disproven as a reliable model of human behavior. When that happens, a lot of things are going to go by the wayside, including many legal theories and maybe law, as we know it, itself.

    2. I tried to appoint my own expert in the federal partial-birth abortion case that ended up in the Supreme Court. The expert would have been provided by American Association for the Advancement of Science (AAAS), a group that I had been referred to by the Federal Judicial Center. Both sides objected, and I backed off. The practical problems of dealing with the expert–making a record, for example, of my consultations with the expert preparatory to testimony–seemed particularly daunting.

    3. The exclusionary rule is here to stay. Since most plaintiffs would be convicted criminals, I doubt that the economics would prove to be much of a deterrent, at least without a major change in how we handle violations of the Constitutional rights of bad actors. Repeat “nominal damages” ten times.

    All the best.

    RGK

    PS I agree that keeping Posner’s books on your shelf can be a good idea if only for show. However, Posner’s photo on one of the book jackets prompted my wife to ask,”Who the hell is that dweeb!” She comes from a family of lawyers, so I am used to her insults. Point is, I suppose, you can’t tell a book by its cover. That’s my wisdom for today. Good night.

  10. I have seen too much to have a great deal of faith in the personal integrity of judges. When they want a particular outcome, established fact and ‘binding’ precedent are seldom sufficient to restrain them.

    In other words, our judges are entirely human. As others have said here, if you give anyone power without accountability, it is not a question of if it will be abused, but when.

    I am also made of “weaker stuff,” RL, and it would be remarkable indeed if others are not.

  11. SLS,

    I understand your frustration. However, I think you misunderstand why appellate courts harp on a concise and relevant record. They rightly assume that you, as the advocate, know more about the case than they do. So, just like writing an argument in your appellate brief, a task that you would never give over to the judges, the judges expect the same level of attention to the facts. At least that’s my story, and I’m sticking to it.

    All the best.

    RGK

  12. Anon.,

    Three quick points.

    Posner’s reference to the importance of psychology is critical as I have suggested in another reply to another comment. In particular, I think neuroscience has the potential to cause the law to change dramatically in fields as diverse as criminal law and the law of contracts. Even more fundamentally, it has the potential to fundamentally redefine what we mean by judging.

    I completely agree with you that going “outside” the record is a matter of context and degree. The ABA sometime ago got all stirred up about judges using the Internet to do supplemental research and suggested that such activity raised ethical concerns. That’s crazy. But defining when it is wrong or right to go outside the record is certainly not easy.

    Finally, my choice of the worst cases from the Supreme Court would not include those you mention, although I agree that they stink. The worst one for me is the Booker line of cases that totally screwed up federal sentencing law. Whether you like the result or not, the idea that juries always decided sentences at the time of the Founding is both inaccurate and irrelevant in determining what modern judges may consider when they sentence today’s criminals.

    By the way, as a district judge I drew an assignment with the Court of Appeals in the case styled In re GRAND JURY SUBPOENA DUCES TECUM, 112 F.3d 910 (8th Cir. 1997). I dissented from the Court’s decision requiring Mrs. Clinton to turn over to a special prosecutor (Ken Starr) notes taken by White House counsel while in the presence of Mrs. Clinton and her personal lawyer. Since the Supreme Court did not even grant cert. in that case, it stands as awful precedent for future Presidents. I blogged a bit about this and the dissent of my old boss in the Clinton v. Jones case you reference. You can find the post here.

    All the best.

    RGK

  13. Jeff,

    I agree with almost everything you wrote, particularly your first point about rationality and your third point about the ineffectiveness of tort remedies for civil rights violations when suggested as a substitute for the exclusionary rule.

    As to your second point, I am not in love with our adversary system, and that especially includes our jury system. Juries stink when they are forced to deal with highly complex factual situations (think patents cases or software contract cases or products liability cases or medical malpractice matters, etc.) But, I don’t hate our adversary system or jury system either. Most importantly, I am not smart enough to think of adequate substitutes.

    All the best.

    RGK

  14. repentinglawyer,

    You packed a large number of fascinating thoughts in your comment. ‘Cause I am tired, I will only respond briefly (1) Think Law and Neuroscience, and forget Law and Economics–I understand why Posner might be depressed at such a thought; (2) Posner may sound like an American pragmatist, but Vienna or Prague or Berlin runs through his veins–I think; (3) how dare you: a bobble head doll of Keynes is pornographic; (4) what would I do without suppression motions and besides no jury is going to give a criminal very much money; and (5) I sorta get the legislative fact idea, but I don’t really grasp the difference between a legislative fact and the regular old bite you in the ass fact. All the best.

    RGK

  15. I don’t dispute that the adversary system has its weaknesses, nor that jurors (and judges, I might add) are given impossible tasks when it comes to determining which disagreeing “expert” (or lay witness, for that matter) testifies to what is in absolute epistemological terms, the truth. But every mechanism I’ve seen or considered to improve the result strikes me as pretty close to a total failure – though I’d like to see more jurisdictions adopt the Physical Facts Rule and far more thorough and evenhanded application of Daubert and its progeny.

  16. Well, here’s one problem: Posner writing in 1992’s Albright v. Oliver:

    “Since a malicious prosecution is by definition groundless, it does not impose punishment costs, not usually anyway. In the end the defendant is exonerated, though the end may come after punishment had been imposed or commenced, for example if the prosecution had been founded on forged documents not exposed till after the defendant had been convicted and imprisoned, as was alleged to be the case in King v. Goldsmith, 897 F.2d 885 (7th Cir.1990).”

    In the end the defendant is exonerated. Just like that. Only someone who has never really practiced law could put it that way, as if exonerations just occur by themselves as a matter of course.

    But then he’s re-thinking economics and the law inasmuch as the recent record of the economics profession is pretty dismal. So there’s capacity to re-think, and that’s really good. And unusual in a judge.

    The most interestingly revealing quote was about considering matters outside the record. Posner is wary of lawyers, who “want to control the case”. And I think he’s right up to a point. Internet searches, though? If his point is that the facts and the law control the case and not the lawyers, well again I agree. Then again a lot of lawyers – and judges, unfortunately – are of the opinion that there’s no such thing as “facts” or “law” or “truth” or “justice”. In any event, I wonder how he would react when a lawyer is 100% correct. I get the feeling some judges would recoil from just going with it, as if the principle that lawyers do not “control the case” is more important than getting it right. The underlying view is that it’s all a power or ego or dominance struggle. I don’t know if Posner is especially vulnerable to that outlook. But a lot of judges are.

    I’m pretty much in agreement with him on the exclusionary rule, but the remedy – 42 U.S.C. 1983 – has been mainly choked off by the federal judiciary.

    His opinion in Fields v. Wharrie earlier this year was not exactly pragmatic, referring to a “breath-taking injustice”, so I like that. More willingness to reconsider an opinion. On the other hand, if he had a better clue about the routine injustices occurring in the justice system he would not have been so impressed.

  17. My experience is that most appellate courts (and more importantly most law clerks for appellate courts) do review the entire record. I have had cases decided on facts and arguments that neither side made (including cases decided on facts that had no support in and were contrary to the record).

    The reason for a concise record is similar to the reason for a statement of material facts (and citations to the supporting exhibits) in a motion for summary judgment — a mechanism for focusing on what really matters in the case as opposed to taking the risk that the court will miss what you consider to be important and focus instead on what you think is trivial (thereby reaching what you consider to be the wrong decision).

  18. RGK: “Whether you like the result or not, the idea that juries always decided sentences at the time of the Founding is both inaccurate”

    Judge Morris Hoffman (http://judgepedia.org/Morris_B._Hoffman) would respectfully disagree: http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1185&context=dlj See also, Adriaan M. Lanni, “Jury Sentencing in Non-Capital Cases: An Idea Whose Time has Come (Again)?” 108 Yale L. J. 1775 (1999).

    According to Hoffman, at the time of the Founding, it appears that about half of the Colonies entrusted sentencing to juries, on the ground that they did not trust judges. Where judges were trusted with sentencing, their discretion was controlled tightly by state law, in much the same way the Sentencing Guidelines work today. From the abstract:

    There are powerful historical, constitutional, empirical, and policy justifications for a return to the practice of having juries, not judges, impose sentences in criminal cases. The fact that Americans inherited from the English a mild preference for judge sentencing was more a historical accident than a case of thoughtful policy. Jury sentencing became quite widespread in the colonial and postcolonial eras as a reflection of deepseated mistrust of the judiciary. The gradual drift away from jury sentencing was driven not by a new-found faith in the judiciary, but rather by the now discredited paradigm of rehabilitationism. Now that that paradigm has shifted to neoretribution, and that the essential moral character of the criminal law has been rediscovered, jurors should likewise be rediscovered as the best arbiters of that moral inquiry.

  19. AMP,

    I stand by my assertion.

    At the federal level, and as Professor Bibas has repeatedly pointed out, federal judges had the power to sentence as early as 1790: “An Act for the Punishment of Certain Crimes Against the United States, ch. 9, 1 Stat. 112, 112– 19 (1790) (creating thirteen crimes with sentencing ranges from up to one year to up to seven years’ imprisonment, and one punishable by unlimited imprisonment and fines at the judge’s discretion, as well as six capital crimes) . . . .” See here at page 14 n. 89. “No particular procedures guided or constrained this unilateral judicial discretion. Judges could base sentences upon any facts that they chose to find, under any standard of proof, or upon no facts at all.” Id. at 14.

    As for jury sentencing, if Congress required jury sentencing, that would be fine with me. They could certainly do as good a job as I could.

    All the best.

    RGK

  20. Judge You and the Perfesser sailed right by one another, you said SCOTUS was wrong to say always and he countered with sometimes which still makes SCOTUS wrong and you both seem to agree Congress could change its original decision to have judges sentence. A cause for joy or a mere pause in the bad judges not that bad judges war? With warring law rev cites on the Colonies and early federal practice I am reminded of sad days on the tenure tract.

  21. Crumudgeon, You paraphrased Lord Acton on the corrupting effect of power. Acton was talking about the doctrine of papal infallibility, but Pope Francis seems to suffer from a becoming humility which most judges could borrow. My problem is that any transparency increase simply invites more humans to fight about what happened and I am not sure that is improvement, though I share you faith in human imperfectability.

  22. Judge RGK,

    You have a great blog and great commenters.

    On the psychology issue Posner, J. alluded to: (“the inroads that psychology has made on economic analysis”), I think that you and Posner are quite in sync with relevant aspects of brain research, its impact on psychology, and the resultant impact on judicial analysis.

    Our brain develops in many ways like the body of law does:

    Probably 98 percent of your reasoning is unconscious – what your brain is doing behind the scenes. Reason is inherently emotional. You can’t even choose a goal, much less form a plan and carry it out, without a sense that it will satisfy you, not dis­gust you. Fear and anxiety will affect your plans and your ac­tions. You act differently, and plan differently, out of hope and joy than out of fear and anxiety.

    Thought is physical. Learning requires a physical brain change: Receptors for neurotransmitters change at the synapses, which changes neural circuitry. Since thinking is the activation of such circuitry, somewhat different thinking re­quires a somewhat different brain. Brains change as you use them-even unconsciously. It’s as if your car changed as you drove it, say from a stick shift gradually to an automatic.” (What Orwell Didn’t Know, quoting Dr. George Lakoff). The law constantly changes in one aspect or another as new published opinions are entered into the state and federal lawbooks.

    The brain changes physically as new thoughts and circuits enter or leave it as we experience reality around us.

    Everything follows something else, and so does the law.

    Which means that law, like the brain, is always going in some direction.

    The actual direction tells a lot more, overall, about where the legal culture and legal brains are headed than the mere desire for a particular direction does.

  23. RependingLawyer,

    “Acton was talking about the doctrine of papal infallibility”

    Not exclusively:

    I cannot accept your canon that we are to judge Pope and King unlike other men with a favourable presumption that they did no wrong. If there is any presumption, it is the other way, against the holders of power, increasing as the power increases. Historic responsibility has to make up for the want of legal responsibility. Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men, even when they exercise influence and not authority: still more when you superadd the tendency or certainty of corruption by full authority. There is no worse heresy than the fact that the office sanctifies the holder of it.

    (About Toxins Of Power, quoting Lord Acton).

  24. Holy Cow! I agree wholeheartedly with Judge Posner. Is this advancing age or improved thinking on my part?

  25. Dredd, I would like to claim to have remembered entire quote in letter to Creighton, but do not want to add hypocricy to my vices for as Creighton wrote it was his unwillingness to add that vice to his others that gave Alexander VI his bad reputation and produced a lot of racy tv. I added the last grace note.

%d bloggers like this: