Law School Deans, Law Schools

First Monday Musings By Dean Vik Amar: Reflections On Judge Posner's 'Divergent Paths'

Some of Judge Posner's points are clearly correct; in other cases, the situation is more complicated than he seems to appreciate.

By  
on
Dean Vikram David Amar

Dean Vikram David Amar

In his recent and important book Divergent Paths: The Academy and the Judiciary, longtime federal appeals court judge and ultra-prolific legal scholar Richard Posner documents and dissects what he sees as a growing gap between the judiciary (particularly the federal judiciary) and law professors (particularly those at America’s leading law schools). He criticizes both branches of the profession – for example, he says that current judicial culture has a certain “staleness,” and that judges suffer from a “tendency to recite propositions of doubtful veracity,” a “lack of curiosity” and a “weak sense of fact” – and then offers a litany of suggestions for how the academy can and should change the way it does business to help the judiciary.

There is far more in this rich book than I could possibly engage in one column, but in the space below I identify a few of the nonobvious yet “no-brainer” suggestions as to which Judge Posner is clearly correct, and then discuss a few more as to which I think the situation is more complicated than Judge Posner seems to appreciate.

Suggestions by Judge Posner That are Overwhelmingly Correct

Judge Posner urges legal scholars to “deemphasize the study of Supreme Court decisions relative to decisions of the lower federal courts.” I think this is spot on. In most areas of federal law – including my own primary field of constitutional law – the vast majority of justice that is administered takes place at the Court of Appeals level, not at the Supreme Court. And yet very few professors and law students write about Court of Appeals decisions, except insofar as they may generate a “split” that might warrant Supreme Court review.

This is bad for the lower courts – they could use more assistance. And it is also terrible for the litigants and the system of justice, because no one other than the parties is trying to keep lower federal courts honest. I can’t tell you how many times I have read Court of Appeals decisions whose results rely on mischaracterizations of past precedent or the factual record. But unless you read the earlier rulings – or delve into the record – the mistakes (or worse) are not visible. And when lawyers/clients claim they are victims of judicial error, they are not taken seriously because of their self-interest. So professors (and also law students working on their own scholarship) need to serve as better watchdogs here.

Judge Posner wants law schools to offer more instruction in “complex financial and technological products and companies that give rise to litigation,” and to “refer students to MOOCs to fill gaps in their [non-legal] knowledge.” Again, right on the mark. Law schools need to partner better with the business and STEM units on their campuses (and I am trying to walk the walk on this one at the University of Illinois) to better equip new lawyers and law clerks for the kinds of disputes that are most challenging to 21st century courts.

Sponsored

Another suggestion: “Write academic articles that are shorter, simpler and therefore more accessible to judges.” Duh?! Happily, law reviews and legal scholars have already begun (over the last decade) to move in this corrective direction. Notice that no one is suggesting that authors avoid tackling complicated topics and ideas – but presenting things in more concise and more easily understandable ways is always welcome.

Suggestions by Judge Posner That Are More Complicated

I don’t find all of Judge Posner’s prescriptions problem-free. Some, like the idea that we should abandon casebooks and instead assign law students to read judicial opinions (available for free online) in their entirety, almost ignore reality. (And I hope I’d say this even if I didn’t edit a casebook myself!) Judge Posner might write short, footnote-light opinions, but other important judges certainly do not. (Has Judge Posner looked at the length of some important recent rulings like Citizens United and Heller, both of which are well over 50,000 words? Students asked to read a few of those decisions in full would revolt and refrain from doing any other reading.)

Other of Judge Posner’s suggestions are insightful, but perhaps inadequately nuanced. For example, Judge Posner urges law schools to “hire more faculty who have practical legal experience.” All other things being equal, I fully embrace that. (And I myself know I benefit from the time in practice I had before teaching.) But as I’ve learned (most powerfully from being a Dean), all other things are rarely equal, and trade-offs are almost always required. Elsewhere, Judge Posner understandably urges law profs to conduct “scientifically grounded” and “data-rich” research, and to “[m]ake greater use of modern empirical methods.” Yet the people with the best skills to conduct “data-rich,” “empirical” and “scientifically grounded” studies are often (though not always) people who have advanced degrees in fields other than law. Ideally, law schools could look to hire first-rate legal minds who have practical professional experience on top of training and sophistication in other disciplines. But many people who pursue advanced degrees would like to start their academic careers before they get too old, and that makes it harder for them to obtain meaningful practical experience in addition. My own sense is that great law faculties strike a healthy balance, and have different faculty members who bring – and can share with other faculty – different experiences and skill sets.

Judge Posner’s suggestion that we “substitute for conventional courses in fields like civil procedure . . . clinical-style course that use case materials prepared by the Institute of Trial Advocacy [ITA] to simulate the trial process realistically” is also a mixed bag. I fully agree that simulation courses that use materials like ITA’s are wonderful additions to the curriculum (indeed, we added a great one like this in our Chicago Program a few years ago), but to use such courses to replace conventional courses in civil procedure strikes me as a big mistake. Indeed, if we return to the first suggestion above about focusing more on lower federal courts, we see that a large number of mistakes federal courts of appeals make relate to civil procedure and federal jurisdiction, and seem to reflect the fact that modern federal law clerks – and sometimes the judges themselves – appear not to have read and internalized many seminal cases in the field of federal courts.

Sponsored

More generally, I find Judge Posner’s de-emphasis on teaching and writing about legal doctrine to be a bit unsettling. He thinks law schools need spend less time on doctrinal rules largely because he thinks judges themselves don’t take doctrine very seriously – “[m]ost judges evaluate cases in a holistic, intuitive manner, reaching a tentative conclusion that they then [and only then] subject to [a] technical legal analysis” that is rarely going to stop the judge from doing what s/he thinks is just.

I hope Judge Posner is not right about how “most” judges operate here, and I know he is not right about the constraining force of “technical legal analysis” (when it is done properly). As for my own field of constitutional law, he writes: “Most of the constitutional provisions that get dragged into litigation that reaches the Supreme Court provide no guidance on how to decide constitutional cases?” Really? The provisions of the Constitution provide no guidance!?   If Judge Posner is right about ambitious assertions like this, the stakes for this fall’s election are even greater than I had appreciated, and the legal system has far bigger problems than the gulf between the judiciary and the legal academy.

Ed. note: The first Monday of July is July 4, when Above the Law won’t be publishing. Dean Amar’s column will resume in August.

Divergent Paths: The Academy and the Judiciary [Amazon (affiliate link)]

Vikram Amar is the Dean of the University of Illinois College of Law, where he also serves the Iwan Foundation Professor of Law. His primary fields of teaching and study are constitutional law, federal courts, and civil and criminal procedure. A fuller bio and CV can be found at https://www.law.illinois.edu/faculty/profile/VikramAmar, and he can be reached at [email protected].

Topics

, , , , , , , , , , , , , , , , , , ,