On legal education & legal scholarship — More questions for Judge Posner

We should not allow complacency about the American university system to blind us to the weaknesses in legal education.

I am not starry-eyed about the new interdisciplinary legal scholarship. [Even so,] where is it written that all legal scholarship shall be in the service of the legal profession? 

The decline in doctrinal scholarship is relative, not absolute, and perhaps not even relative; all that may be occurring is a shift in the production of doctrinal scholarship toward scholars at law schools of the second and third tier.

— Richard Posner (1995)

This is the fifth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, and the fourth one here.  

Richard Posner’s scholarly career in law may have started in 1961-62 when he served on the Harvard Law Review, first as a staff member and then as the President. During that period he published on topics as diverse as a note on the application of international law to outer space (74 HLR 1154), a comment on federal review of state law rulings (74 HLR 1375), a comment patent and antitrust law (75 HLR 602), and a comment on the application of law to religiously owned property (75 HLR). After his clerkship with Justice William Brennan (1962-63 Term) and several jobs with the federal government, he began his professorial career at Stanford Law School in 1969 and thereafter ventured off to the University of Chicago Law School where he is currently a senior lecturer in law. Over the years he has taught antitrust, economic analysis of law, civil procedure, conflict of laws, law and science, evidence, and law and literature.

One of his articles ranked 64^th in the list of the most-cited law review articles of all time. In the field of antitrust law, one his articles (co-authored with William Landes) ranked second in the listings of the most-cited law review articles. (Posner had his own system of rankings.  See here) Even more impressive, as reported by Fred R. Shapiro and Michelle Pears, “[a]s of 2000, Judge Posner was the most often-cited legal scholar of all time with 7,981 citations, nearly 50 percent more than anyone else.”

In the last half-century or so, Posner has published a wide variety of scholarly works in the form of books (40-plus) and articles (300-plus) – perhaps more than any academic writing in the field of American law. In that array of legal literature he has written much on the topic of legal education and legal scholarship. See, for example, the following nine articles by him:

1. “The Present Situation in Legal Scholarship,” 90 Yale Law Journal 1113 (1981)
2. “The Decline of Law as an Autonomous Discipline,” 100 Harvard Law Review 761 (1987)
3. “The Deprofessionalization of Legal Teaching and Scholarship,” 91 Michigan Law Review 1921 (1993)
4. “The Future of the Student-Edited Law Review,” 47 Stanford Law Review 1131 (1994)
5. William M. Landes & Richard A. Posner, “Heavily Cited Articles in Law,” 71 Chi.-Kent L. Rev. 825 (1996)
6. “Past-Dependency, Pragmatism, and Critique of History in Adjudication and Legal Scholarship,” 67 University of Chicago Law Review 573 (2000)
7. “Legal Scholarship Today,” 115 Harvard Law Review 1314 (2002)
8. “Against Law Reviews,” Legal Affairs, Nov-Dec. 2004
9. “The State of Legal Scholarship Today: A Comment on Schlag,” 97 Georgetown Law Journal 845 (2009)

Below are some questions on the topics of legal education and legal scholarship I posed to the Judge followed by his replies. (Note: Some links will open in Firefox or Chrome but not in Safari.)

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Question: What do you think is the single greatest shortcoming of legal education in America today?

Posner: There are several shortcomings; I don’t know how to rank them.

1. Legal education is too expensive, in part because law school faculties are too large.
2. Not enough law professors, especially at the elite law schools, have substantial practical experience as lawyers, and
3. Law school teaching focuses excessively on legal doctrine, to the exclusion of adequate attention to facts, business practices, science and technology, psychology, judicial mentality and behavior, legal practice, and application of legal principles.

Question: Insofar as the teaching of legal ethics is concerned, is teaching the rules of professional responsibility and the cases interpreting them enough in your opinion? Or should some significant attention be devoted to familiarizing law students with some of the great works of the Western Philosophical tradition? – say, to Plato’s Gorgias or Aristotle’s Rhetoric (see here at p. 1924)

Posner:  I don’t consider instruction in legal ethics an important part of legal education. Aristotle’s Rhetoric is pertinent to the rhetorical dimension of legal practice, rather than to legal ethics. Gorgias can be read as critical of lawyers’ tricks, though there were no lawyers as such in fourth century b.c. Athens.

Question:  It has been argued that legal education is akin to learning a form of science. In what ways, if any, does it make sense to speak of the study of law as the study of legal science?

Posner: Law has nothing to do with science. It involves making and applying rules of conduct; the rules are based on legislative and other political decisions, common sense, societal values, judges’ personal preferences, intuition, rhetoric—not logical or scientific rigor.

Question: All things considered, what do you think of calls for reducing law school education to two years?

Posner:  I think that would be fine. A third year might be offered, but as something to be taken after the two-year graduate has spent some time in practice and wants some specialized further training.

Question: In your opinion, how, if at all, has the role of the law school dean changed in the past half-century? And if it has changed, what do you make of it?

Posner: Much more emphasis on fund raising.

Question: In Tagatz v. Marquette University (1988) you noted that tenure “tends to take some of the edge off academic ambition.” What are your views on the current tenure system as it operates in law schools and how, if at all, might you change it?

Posner: Tenure is a form of nonmonetary compensation, hence attractive to universities. The downside is it undermines the work ethic. I don’t know whether the benefits exceed the costs.

Question: (1) What are your views concerning affirmative action and tenure standards when it comes to promoting racial minorities? And do democratic principles justify bending evaluative standards?

(2) Is the problem of race the problem of the evaluative standards that law schools employ? If so, what is the alternative?

Posner:  (1) The only racial minority in the United States that needs affirmative action is the African-American minority. I doubt, though, that African-Americans who have the competence to be considered as law professors need a boost.

(2) I think law schools should give more weight to practical experience in hiring law professors, but I don’t think this relates particularly to African-Americans.

Question: Many years ago you wrote: “not all blacks are culturally black.” Would you a say a bit more about what you meant by that and do you still hold to that view? In answering that question, do you think that one can ever fully escape the consequences of his or her color even if one is, as you put it, an “assimilated black”?

Posner: I’m sure that almost all African-Americans are conscious of and think occasionally about being black—that’s inevitable given history, and it’s the same reason that secular Jews, who may have zero interest in Judaism or Jewish culture, remain conscious of being Jewish. But successful upper-middle-class African-Americans are so much like their white counterparts as not to be preoccupied with the racial difference.

Question: Is Socratic “cold call” method dying in law schools? Or is it already largely dead? If so, is this a good thing? Your views?

Posner: I think the traditional Socratic method was great. It created a form of active learning very valuable to the students. I regret its decline.

Question: Much of the law of contracts is taught by way of appellate cases. Some have argued that much more transactional and economic materials need to be included, perhaps even to a substantial degree. What are your views on this?

Posner: I can see value in a course on complex commercial transactions. I wouldn’t try to stuff that material into a first-year contracts course.

Question: Do you think constitutional law should be taught in the first year? If so, why? If not, why not?

Posner:  Absolutely not. It’s a terrible field, dreadfully politicized.

Question: Casebooks, especially in public law, have changed considerably since you were in law school. Today, they are considerably longer (often nearing 2,000 pages) and contain far more note materials. What do you make of this?

Posner: A big mistake, the note materials especially. It distracts from the student’s need to learn how to read judicial opinions intelligently. For that they need the opinions, with minimal editing, not notes.

Question: What, if any, lasting impact do you the Critical Legal Studies movement has had on law and on the legal academy?

Posner: Zero.

Question: Insofar as interdisciplinary legal scholarship moves well beyond the doctrinal frame of knowledge of many student law review editors, what is the best way to evaluate that kind of scholarship at the outset? Is there a practical way, and if so, what would that be?

Posner: The domination of academic law journal publication by students is a scandal.

Question: A major service provider for electronic submission to law journals now asks questions about gender, racial identity, sexual orientation, and economic hardship. Well?

Posner:  Absurd.

Question: Today considerable emphasis continues to be placed on legal scholarship, which consists mainly of publishing in law journals. That emphasis affects everything from salaries to tenure to upward mobility. What is your take on that? Do you find it problematic in any real way?

Posner: I would like to see considerably more emphasis on teaching, which would incidentally enable reductions in the size of law school faculties and hence in the cost of a legal education. Most published legal scholarship is ephemeral, especially in constitutional law, an analytically weak and excessively politicized field.

Question: Much public law scholarship today seems to be premised on the idea that many Warren Court opinions constitute the jurisprudential baseline. Do you agree? And if so, is that baseline changing and what does that portend?

Posner: The Warren Court was revolutionary, so it is inevitable that its legacy would attract a good deal of attention.

Question:  You have used the words “advocacy scholarship” in some of your writings — for example, you once referred to one of Professor William Eskridge’s books as a “model of advocacy scholarship.” What exactly do you mean by that?

Posner: Law professors making academic arguments for changing the law, usually changing constitutional law. I have written articles and books advocating legal changes, though usually not in constitutional law.

Question: Given your understanding of advocacy scholarship, was the 1890 Warren-Brandeis Harvard Law Review article of that genre?

Posner:  Yes,it argued for a law change — the recognition of a tort of invasion of privacy (of course nothing to do with the right of privacy declared in Roe v. Wade).

Question: What about Hebert Wechsler’s Neutral Principles article? Was it of that genre?

Posner: No. Wechsler was arguing that Brown v. Board of Education was wrong, but I don’t think he was advocating that it be abandoned; the “separate but equal” horse had left the stable.

Question: Might any of your articles be fairly described as “advocacy scholarship”?

Posner: What I wrote in the 1970s about antitrust and regulation would be the clearest examples. [RC: see e.g., Posner, “The Social Costs of Monopoly and Regulation,” 83 J. Pol. Econ. 807 (1975).] I’m sure many since then, but they don’t come to mind.

Question: You have posited that “[a]cademic law is no longer a strong field in the sense of having objective standards . . . .” Please elaborate.

Posner: Did I suggest it was ever strong? If so, I was mistaken. Law is an interesting and important field, but it is also a weak field, and this limits the potential of academic law. Not that there aren’t useful syntheses in different areas of law, and useful borrowing from economics, psychology, and political science.

Posner on Understanding Judges & the Judicial Process

Many academics . . . who write about law don’t understand judges, including Supreme Court Justices. Or, especially if they are law professors, [they] do understand but think it would be impolitic to speak frankly about judges. [It] is very important, however, that you be realistic about judges, otherwise you won’t know how to communicate with them . . . . The way the academic . . . talks about judges, whether they believe it or not, is that they think of judges [as] being like academics. [Judges are] looking for correct answers to questions that arise in cases. They differ only in that they are not as smart as academics. We know they are not as smart because merit plays a smaller role in judicial selection than in academic selection. . . . The academics tackle questions they think they can answer. They pick their topics with a view to the feasibility of making progress on a particular topic. But the judges make decisions in cases that come at them randomly. So the judge’s duty is to decide, even if the judge has no idea what a correct sensible decision would be in a case, or a decision congenial to the judge’s views. The duty to decide is fundamental, and that makes a tremendous difference to how one thinks about problems, and what one brings to the problems . . . .  (October 23, 2014, University of Chicago Law School remarks)

Question: In 1990 you suggested that doctrinal scholarship was in decline. Has that trend continued, and if so, what are your views on the matter?

Posner: By doctrinal scholarship I mean scholarship focused on particular legal doctrines, a kind of scholarship potentially of considerable value to lawyers and judges. I think it is in decline because law professors become increasingly interested in abstract theory.

Question: There seems to be no end to scholarship on originalism, be it of the liberal or conservative variety. Why do you suppose that is and what is your opinion on the matter?

Posner: It’s an aspect of the preoccupation of the legal academic community with the Supreme Court, for it is mainly in relation to constitutional provisions that the debate over originalism rages. The preoccupation has very little value, and originalism is largely a fake, concealing the political preferences that drive most constitutional adjudication, owing to the political stakes and the extreme vagueness of key constitutional provisions.

Question: (1) Brent Newton, the Deputy Staff Director of the U.S. Sentencing Commission, maintains that the legal “academy — both in terms of its preparation of law students to enter the profession and in the type of scholarship its professoriate is producing — has lost its practical moorings.” Given that this is a topic you have explored, what is your response to that?

(2) In Overcoming Law you suggested that in past times there was a certain “self-identification of the professoriat with the practical profession.” By and large, do you think that remains so today? If not, what are the consequences of any such change?

Posner: (1) I agree.

(2) No. The professoriat has grown apart from the practicing areas of the profession. It is more abstract, more populated by refugees from academic fields such as philosophy and economics, whose interest in the practical side of law is slight.

Question: Who would you list as among the best scholars writing in jurisprudence in the last twenty years and why?

Posner:  I no longer follow jurisprudence closely.

Question: In retrospect, are there any aspects of your extensive scholarship about which you now have serious misgivings? If so, what are they?

Posner: Excessively conservative, and insufficiently attentive to psychology and to the politicization of much of law, and an excessive faith in the economic analysis of law, and insufficient interest in facts and the real-world context of litigation.

The next installment, the sixth, in the Posner on Posner series was originally slated to be “On Judicial Reputation.” I have, however, decided to hold that post and run the “On the First Amendment” post first, which will appear this Wednesday (December 10th). 

By way of a topically unrelated aside:  for a brief clip of a recent exchange between Judge Posner and Professor David Cole (this as part of a Cybercrime Symposium at Georgetown Law Center), go here. (ht: Orin Kerr)