BOOK REVIEW

Frontiers of Legal Theory
by
Richard A. Posner

FUTURECASTS online magazine
www.futurecasts.com
Vol. 7, No. 10, 10/1/05.

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Modern legal theory:

  The legal system of the United States - outside Louisiana - is a common law legal system. The ways in which judges and the bar have developed common law rules and procedures - and the policies and principles that guide this process - are little understood outside the legal profession.
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This part of the book is predominantly a justification for the expansion of judicial discretion so that the courts can determine and set social policy appropriate for modern conditions.

  In "Frontiers of Legal Theory," Richard A. Posner, judge on the U.S. Court of Appeals for the Seventh Circuit, begins with an explanation of how the courts sometimes draw on concepts from other disciplines when developing new legal rules and procedures or new interpretations of existing rules and new applications of existing procedures. However, this part of the book is predominantly a justification for the expansion of judicial discretion so that the courts can determine and set social policy appropriate for modern conditions.
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  Economics, psychology, statistical inference, epistemology  (the truth finding capacity of legal procedure) are the disciplines examined by the author as distinct but overlapping examples of how concepts developed in other disciplines sometimes impact the law. These are the most prominent disciplines that contribute to modern legal development. The author mentions other fields but does not provide extensive coverage because they tend to be narrow of focus or without significant professional support.

  "Advances in nonlegal fields - such as  economics, game theory, cognitive psychology, and even literary theory - have forged new tools for the study of law, while at the same time the growing complexity of law and society has exposed the poverty of doctrinal analysis as a tool for solving the problems of the legal system."

  The great increase in the number of  law professors - and the growing influence in the law of women and minorities - and the influence of political radicals, "has increased the market for critical, which generally are external, perspectives on the legal system," Posner explains. "And abundant data on the system that are easily retrievable and analyzable are helping to sustain legal theory as a research program."

  • Economics has long played an important role in economic regulation in such fields as antitrust law and public utility regulation where the law is oriented in a free-market direction. Now, it applies to the tradable emissions rights under environmental law, the concept of "regulatory takings" under eminent domain, and the value of household services in divorce law. Posner has played a major role in the development of this relationship, and it is the one on which this book (and this FUTURECASTS  review) spend the most pages.

  "The most ambitious theoretical aspect of the economic approach to law has been the proposal of a unified economic theory of law in which law's function is understood to be to facilitate the operation of free markets and, in areas where the costs of market transactions are prohibitive, to 'mimic the market' by decreeing the outcome that the market could be expected to produce if market transactions were feasible. It thus has both descriptive, or explanatory, and normative, or reformist, aspects."

  • Legal history is the traditional and most widely used aid in applying the law to various issues. The Constitution, statutes and legal precedents are historical constraints and guides for judicial decisions. They "make it natural for legal scholars to take a historicist approach," and for courts to rely on historical pedigree as a reinforcement for the legitimacy of their decisions and supporting reasoning. However, Posner convincingly distinguishes modern "originalism" from traditional historicist approaches.

  • Feminist jurisprudence brings long neglected women's interests to bear on such matters as "the rules of evidence in trials for rape, the sale and display of pornography, sexual harassment, - - -." There is a broad range of beliefs within the woman's law-reform movement. Like many movements, it has experienced both successes and failures. Other sex-related and gender-related legal movements feed off feminist legal theories. Posner has covered them in other books, but does not  deal with them in this one.

"The legitimacy of a practice by which a committee of judges can check the power of the democratic majority to implement its preferences in law has long been a staple of debate within the legal profession."

  • Constitutional law is shaped by such broad and vague provisions as "due process of law" and "equal protection of law." This vagueness permits the Constitution to remain flexibly relevant and applicable to modern problems, but leaves open the modern increasingly bitter debate over the extent of the Constitutional constraints on the judiciary and the extent of the judiciary's discretion in dealing with issues of Constitutional interpretation.

  "The Supreme Court has often interpreted vague constitutional terms to create rights, such as the right of abortion, that are both remote from the expectations of the Constitution's framers and ratifiers and at odds with democratic majorities in particular states and sometimes in the nation as a whole. The legitimacy of a practice by which a committee of judges can check the power of the democratic majority to implement its preferences in law has long been a staple of debate within the legal profession."

  Three main approaches to Constitutional theory are covered by the author.

  1. The "restraintist" approach advocates reliance on broad neutral Constitutional principles.
  2. The "representation reinforcing" approach seeks to strengthen representative democracy by invalidating obstacles such as poll taxes and malapportionment of legislative districts.
  3. The "living Constitution" approach accepts a "progressive prudential" role for the courts.

  It is ridiculous to believe that a "living Constitution" will change only in a "progressive" direction. As we can see with respect to the waxing and waning of the "criminal law revolution" of the 1950s and 1960s, it can flip flop rapidly.

  As a practical matter, the courts are inevitably influenced by the same interest groups that influence the legislative and executive branches. The principles of "public choice" involve agenda setting, "the strategic interactions between different branches of government, and the indeterminacies of voting as a method of aggregating preferences." Game theory and rational-choice models are thus covered by the author.

  • Legal philosophy - "jurisprudence" - is not the only philosophical influence on the law. Kantian and utilitarian political and moral philosophy have influenced development of such fields as tort, contract and property law. Philosophical understandings of the nature of language and knowledge have come into play for issues of causation, intentionality and voluntariness, "and the scope of statutory interpretation."
  • Sociology of law plays a much weaker role in the U.S. than in Europe. In Europe, it focuses on "the operation and effects of the criminal justice system; the delivery of legal services to the  poor; the structure, income, and regulation of the legal profession; how to improve judicial performance; and class and political bias in the judiciary and the profession."

  In the U.S., the failure of sociological efforts to come up with feasible and credible methods of dealing with crime have marginalized the impact of sociology on the law and is a part of "a general malaise of sociology in American higher education." Nevertheless, sociological studies have contributed greatly to the understanding of the operations and impacts of the legal system.

  • Cognitive psychology is important not only for issues of insanity, but also for understanding "quirks" in the functioning of normal mental processes. Evaluation of various aspects of witness testimony and the performance of judges and juries, the impact of legal norms outside the courts, and assumptions about the rationality of human behavior, are aspects of cognitive psychology. "Quirks" in human cognition include "[1] the availability heuristic, the tendency to give undue weight to vivid, easily recalled facts or impressions; [2] hindsight bias, the tendency to exaggerate the inevitability of causal sequences; and [3] the endowment effect, which is the tendency to value what we have because it is ours, regardless of its intrinsic value."
  • Critical and postmodern legal studies proceed on the assumption that law is nothing but politics.

  "Their denial of law's objectivity, and the generally nihilistic character of their enterprise and resulting dearth of constructive suggestions, limited the impact of their work both inside and outside the academy; today the critical legal movement is passť except that, like the mother salmon off whose corpse her spawn feeds, it has nurtured three other fields of radical legal theory that continue to exert influence in legal circles."

  Theories that view the law in radical feminist or racial terms and postmodern scholarship that emphasizes "the plasticity of the legal system" are outgrowths of critical and postmodern legal studies.

  "Legal theory is here to stay; its successes in illuminating some dark corners of the legal system and pointing the way to constructive changes have been sufficiently numerous to make it an indispensable element of legal thought."

The basic Constitutional issue of judicial review is introduced by Posner as a prime example of how legal theory inevitably interacts with the law. He asks whether judicial review has on balance been good or bad for political governance under the U.S. system, and reasonably comes up with a host of examples that seem beneficial and others that seem obstructive or harmful.

  Constitutional governance means that some matters are beyond majority will - that only a super majority can influence them. The judiciary is the branch of government that is subject to majority will only tenuously. Also, it has the protection of Constitutional principles and rules as its primary concern - not just as a matter of theory but also in a practical way.
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  Thus, the real question - and perhaps the most contentious pertinent issue in recent legal history and for the foreseeable future - is what the scope of judicial review should be? What are the policies and principles appropriate for guiding judicial review and defining its limits? It is this more subtle question that the author should address.

Law and economics:

 

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  The relationship of economics and the common law goes back centuries. Posner refers to contributions by Thomas Hobbes, Jeremy Bentham, David Hume, Adam Smith. It is a subset of the economics of nonmarket behavior. It evaluates costs against benefits, expected pleasure against expected pain.
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Economic analysis "also tries to improve law by pointing out respects in which existing or proposed laws have unintended or undesirable consequences and by proposing practical reforms."

  The relationship is most evident in fields like antitrust and public utility regulation dealing with competition and monopoly - the legal regulation of explicit markets. However, it is also applicable for property, contracts, taxation, corporations, patents. Bentham applied economic analysis to crime and punishment.
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  In the 1960s, Robert Coase emphasized social cost, Guido Calabresi applied economic theory to torts, and Gary Becker refined Bentham's economic analysis of criminal law.

  "And sure enough, within a few years papers on the economics of contract law, civil and criminal procedure, property, consumer protection, and other areas new to economists had appeared and the rough shape of the mature field was discernable. Later, books and articles would extend the economic analysis of law into such fields as employment, admiralty, intellectual property, family law, legislation, environmental law, administrative law, conflict of laws, and judicial behavior -- and this is only a partial list. The expanded range of economic analysis of law was facilitated by the expanding application of the economist's model of rational choice to nonmarket behavior. Lately the range and depth of the economic approach to law have been enlarged by developments in game theory, signaling theory, and the economics of nonrational behavior - - -."

  Economic analysis is used to describe the substance and structure of the system and predict the behavior of participants.

  "But it also tries to improve law by pointing out respects in which existing or proposed laws have unintended or undesirable consequences and by proposing practical reforms."

  The results have been reforms in fields dealing with the regulation of various aspects of commerce. Its influence is felt in the calculation of damages in personal injury suits, the determination of alimony and the division of property in divorce cases, the determination of fiduciary obligations, and even in the federal sentencing guidelines. It contributed significantly to the deregulation movement and the restoration of free market concepts.
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Economic analysis transforms law from an assemblage of unrelated practices, institutions and bodies of law into a deeply coherent structure.

  Economics offers an ideologically neutral analytical method for dealing with politically controversial legal topics, Posner asserts. Ideally, "the economist favors neither side, favors only efficiency." It also frequently "dissolves contentious" situations by demonstrating a fundamental mutuality of interests. Creditor and debtor, buyer and seller, need each other even as they struggle with each other for individual advantage.

  This neutrality is true in an environment of economic sophistication. Economic analysis is readily twisted for propaganda purposes - as the propagandistic success of Marx, Keynes and many lesser ideologues have amply demonstrated. In their hands, economics offers a tool for generating confusion among peoples of little understanding. See six articles starting with Karl Marx, "Capital (Das Kapital)," (vol 1)(I), and two articles starting with Keynes, "The General Theory," (I),

  Posner demonstrates how economic analysis transforms law from an assemblage of unrelated practices, institutions and bodies of law into a deeply coherent structure. Economic analysis provides reasoned structure to the determination of prudent conduct, the assessing of damages or criminal penalties, and the regulation or deregulation of commercial conduct. Unrelated legal issues frequently involve identical economic issues. Posner provides a prominent example.

  "[Resale] price maintenance of patent medicines and the deregulation of airline transportation raise the same economic issue, that of the relation between price and nonprice competition, even though one involves goods and the other services, one is old and one is recent, and one involves the judicial interpretation of the antitrust laws and the other legislative reform of the common carrier regulation."

  Copyright, trademark, and privacy law can be viewed as "ways of striking the balance between the benefits and cost of recognizing personality" - a balance similar to that involved in markets for "credence goods" such as in art markets.
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  Economic analysis, of course, does not compel moral judgments, Posner stresses. However, it can motivate a rethinking of moral judgments. For example, workers' rights laws - like ERISA pension guarantees - can on balance hurt workers in the market by reducing employment opportunities, wages, or investment in their skills.

  Indeed, in Europe, labor markets in some countries have been made so inflexible by worker rights laws that it is impossible to reduce unemployment much below 10%. "Workers" do not all share the same interests. The interests of the fully employed differ from those of the part time or unemployed. Union workers have different interests than nonunion workers. Interests differ by industry as well.

The basic job of the economist is to remind us of the consequences that noneconomists tend to overlook, consequences that often though not always are adverse or at least costly, of actual or proposed policies and practices.

  Economics is ostensibly "value neutral" and can be used to critically evaluate conservative - or libertarian - concepts as well as liberal concepts. For example, Posner notes that conservatives would prefer that government pay for "landmark preservation" facades by purchasing an easement in building facades rather than by employing a taking by regulatory designation. However, economic analysis indicates that this is merely a choice of takings since the government doesn't really "pay" for anything. Either the building owners or the taxpayers (or consumers due to inflation) bear the burdens of government takings depending on how the government chooses to act.

  "As these examples illustrate, the basic job of the economist is to remind us of the consequences that noneconomists tend to overlook, consequences that often though not always are adverse or at least costly, of actual or proposed policies and practices. This use of economics ought to be welcomed by lawyers who think it important to discover what the actual consequences of legal doctrines and institutions are, even those doctrines and institutions that have achieved sacred cow status within the legal profession."

    Economics "is the science of the consequences of human behavior," Posner stresses.

  Posner, like so many others, abuses the word "science" by applying it broadly to nonscientific practical arts like sociology, politics - and economics. These require professional analytical approaches similar to those used for law or accounting or the delivery of health care, rather than just scientific techniques. However, FUTURECASTS  has repeatedly explained this propaganda fallacy and need not repeat that explanation here. See, segment A) "The 'Science' Propaganda Ploy," In Karl Marx, "Capital (Das Kapital)," (vol. 1)(Part I).

Analysis of free speech issues are rife with "indeterminacies."

  The application of economic analysis to free speech rights cases is Posner's first major example and amply demonstrates the lack of precision in this "science." Posner uses well known examples - the shouting of "fire" in a crowded theater - attempts to obstruct the draft during wartime by distributing leaflets to draftees urging noncompliance - or generalized opposition to war policy. Making use of mathematical reasoning, Posner explains his economic analysis as:

  "[The] speech should be allowed if but only if its benefits equal or exceed its costs discounted by their probability and by their futurity, and reduced by the costs of administering the ban;" or
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  "[The speech should be banned] if but only if the expected costs of the speech exceed the sum of the benefits of the speech and the costs of administering a prohibition of it -- the ban has to cover its costs to be cost-justified."

  Yet, all of these factors - made to look so precise when presented in mathematical form - are unknowable in most cases, as Posner readily recognizes. He recognizes the inapplicability of his mathematical expressions, offering them only as "a way of framing and thinking" about the regulation of speech. In clear cases - where the harm is great and likely - the ban will be upheld without the need for economic analysis. A more nebulous approach will be taken in closer cases simply by recognizing a preference for free speech. (The attempt to actually weigh costs and benefits in these cases will be rare - more often than not just a makeweight argument.)
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  With or without economic analysis, restraints on free speech are acceptable only with a clear showing that the benefits of a restraint substantially outweigh the costs. Posner applies some economic analysis to the differing levels of regulation for speech on various types of public property, such as parks and public streets, government offices, and military bases. Economic analysis makes "practical sense out of some esoteric legal distinctions," he explains. It also can rationalize differing rules for different locations or historic times.
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  However, Posner keeps the limitations of economic analysis firmly in mind. Analysis of free speech issues are rife with "indeterminacies." The censorship of "hate speech" or verbal harassment generally or in particular venues like work places or universities, provides ample examples of such indeterminacies. Efforts to distinguish differing types of speech according to some concept of "value" - establishing a hierarchy with political speech at the top and criminal activities at the bottom - also fail because of the indeterminacies of real world examples. As an extreme example: Hitler's genocidal rants against Jews were political speech.
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  Cost-benefit analysis is evident in instances where limitations on speech are justified as facilitating speech. "Limiting the number of participants in a televised debate, preventing demonstrators from blocking traffic, allowing the prohibition of false advertising and providing legal remedies against copying and defamation are examples."
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  However, limitations on speech due to its mere offensiveness to some groups fares poorly under economic analysis. Restraints imposed by political correctness or on pornography or "hate speech" "have little to do with demonstrable harms or even offensiveness."

  "It has rather to do with an ideological project -- in fact with the same project, that of denying or occluding the existence of deep-seated differences between groups - - -. Hate speakers are vociferous deniers of equality, and pornography caters primarily to a specifically male interest in women as sexual playthings for men rather than as persons in their own right who are inherently no different from men except in reproductive anatomy. - - - Insofar as campaigns for the regulation of hate speech and pornography have the purpose and effect of correcting ideological or political 'error,' giving these campaigns the backing of the law interferes arbitrarily with the market in ideas and opinions."

  Subsidization of counter speech -- such as in anti-smoking, safe sex or patriotic advertising - does not have the same impact as censorship, since people are free to disregard it or accept it at will, and it may  be offset by other views.

  "In short, dollar for dollar the subsidy approach would have less impact on the market in ideas and opinions than the regulatory approach, making it less problematic from the standpoint of preserving the freedom of that market -- though not entirely unproblematic, since it would force taxpayers to pay for propaganda in support of causes that they might abhor, which would be a source of disutility to these taxpayers."

"Americans are awash in superstitious and erroneous, even preposterous, beliefs, in part because of sensationalistic and inaccurate 'news' media; many members of the intelligentsia are dupes of absurd ideas peddled by radical postmodernists; and there is a staggering amount of trash culture, both popular and highbrow."

 

"[But if consumers of ideas] can't sort out truth from falsity, or beauty from ugliness, in the wares produced in these markets, how likely is it that censors, judges, or juries can?"

  Posner falls back on the traditional method of deciding free speech issues when weighing indeterminate costs and benefits. .

  "An alternative to trying to weigh them is to confine regulation to cases in which the harm inflicted by speech is manifestly great in relation to the amount of value of speech suppressed -- in other words, to place a heavy thumb on the cost-benefit scale."

  He adopts a tactical view. It is better to fight the battle for free speech at its outer reaches, where utterly worthless and deeply offensive speech is all that is at risk, than closer to its core, where controversial material like "The Bell Curve" or "The Case for Same Sex Marriage" may be at issue. This also prevents the law from degenerating into whatever the judges would prefer.
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  Not that the "market in ideas" is all that effective.

  "These markets may - - - fail by producing 'goods' that have no net value, such as the totalitarian ideologies that wrought such extraordinary havoc during much of the twentieth century. Even today Americans are awash in superstitious and erroneous, even preposterous, beliefs, in part because of sensationalistic and inaccurate 'news' media; many members of the intelligentsia are dupes of absurd ideas peddled by radical postmodernists; and there is a staggering amount of trash culture, both popular and highbrow. Markets in ideas are often undone by prohibitive information costs, which makes it difficult to retain a robust confidence in the truth- and beauty-producing properties of these markets."
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  "[But if consumers of ideas] can't sort out truth from falsity, or beauty from ugliness, in the wares produced in these markets, how likely is it that censors, judges, or juries can?"

  As always when discussing freedom - whether political, economic or speech - freedom can readily be made to look bad, but only when compared with some impossible utopian alternatives. Freedoms do not create utopias. However, free markets in politics, economics and ideas have performed far better than any real world alternatives.

Only the market has tools like competition and the test of time to apply to the task of separating value from trash.

 

Economic analysis is irrelevant to those who see these issues in moral terms, since they are generally blind to the real consequences of actions taken for moral purposes.

  The market in ideas is highly complex - full of externalities - both benefits and costs, Posner notes. Its outputs - such as truth and beauty - are not always readily evident and may be different for different consumers. These must be left to the market in competitive ideas, since only the market has tools like competition and the test of time to apply to the task.
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  Where the determination of benefits doesn't require a competitive process, however, legal intervention is easier to justify - and, as Posner points out, is applied in a multitude of instances.

  "People can still be punished for disseminating obscenity, for revealing military or trade secrets, for defamation, for inciting riots, for copyright and trademark infringement, for plagiarism, for threats, for perjury, for false advertising and other misrepresentations, for certain types of verbal abuse, for exchanging information in the hope of facilitating price fixing, for talking back to prison guards, for revealing confidences of various sorts, for certain forms of picketing and aggressive solicitation, for invasion of privacy, for indecorous behaviour in courthouses, for publicly criticizing one's employer on matters not deemed to be of public concern, for irresponsible or offensive broadcasting, even for using loudspeakers."

  Posner closes this chapter with brief analyses of efforts to regulate "hate speech," campaign financing, and the internet. He discusses the costs and benefits of various regulatory approaches. He has little trouble demonstrating that the costs of such regulation generally outweigh the benefits. He readily concedes that this economic analysis is irrelevant to those who see these issues in moral terms, since they are generally blind to the real consequences of actions taken for moral purposes.
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Noneconomic values:

  Critics of the extension of economic analysis to issues that "are not traditionally economic" respond that in many areas efficiency or other economic values are not the primary concerns.
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Economics does not - and does not pretend to - offer utopian outcomes.

  Basic values like freedom or autonomy are not economic. However, economic forms of analysis still have their place in  diverse fields of the law, the author counters.

  "Much economic analysis of law is directed at suggesting 'market mimicking' forms of regulation to deal with monopoly, externalities, and other conditions that prevent the market from working well because they cannot feasibly be contracted around."

  Economics does not - and does not pretend to - offer utopian outcomes. Determining what is the most efficient or productive outcome does not "generate or validate a theory of distributive justice," the author points out. Inequalities of wealth always confer advantages. However, the author believes that the vast majority of people prefer a "common law shaped by wealth maximization."

  This is especially true in the real world case where, as FUTURECASTS   has repeatedly pointed out, utopian outcomes are impossible, efforts to impose utopian systems always result in vast reductions in total wealth, and distributive justice in such systems generally quickly takes a back seat in favor of providing economic benefits for the politically influential. See, Hayek, "The Road to Serfdom."

  Posner points out that much wealth inequality is a matter of choice - of how long or hard to work and what risks to take and what skills to acquire and jobs to perform. He would have been far wealthier as a practicing attorney than as an appellate court judge. Much inequality reflects the different stages of the life cycle. Much reflects innate abilities and health. And much is sheer luck.
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  He concedes that market systems magnify the returns due to minor differences in quality. The "superstar" becomes fabulously wealthy while those with only slightly inferior skill lag far behind.

  "[This] illustrates the moral arbitrariness of many of the wealth differences among individuals. A system of wealth maximization ratifies and perfects an essentially arbitrary distribution of wealth."

Income levels - "a society's average or median income" - are more likely to affect political stability than income distribution, as long as it includes a sizable middle class.

 

If efforts to reduce inequality undermine the economy or reduce its dynamism, they may actually increase political instability and make it harder for people to rise out of poverty.

 

Equality of opportunity may thus be a far more important factor for political stability than equality of outcome.

  Social issues involving income inequality are examined by Posner. He easily debunks left wing alarums about inequality and political instability.

  "These examples show that public or private measures that promote equality of opportunity can actually reduce equality of results, and specifically equality of incomes. Although society can intervene to alter the distribution of income by its tax and fiscal policies, the heavy political as well as economic costs are increasingly recognized and the people who would be harmed directly by them - the wealthy - are adept at orchestrating an effective political opposition."

  As long as a nation is broadly prosperous, Posner points out, inequality of wealth and the existence of an underclass are unlikely to undermine political stability. Too many people have a stake in maintaining lawful conduct. Thus, income levels - "a society's average or median income" - are more likely to affect political stability than income distribution, as long as it produces a sizable middle class.
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  Moreover, as long as incomes are rising, the middle class and even the poor are unlikely to resent those who enjoy greater wealth.

  Even when income statistics show little increase for the poor or the middle class, individuals may and generally do experience rising incomes as they pass through low wage positions into higher income positions over time. Most of the poor today in the U.S. are not the poor of ten years ago except for those who do not - or can not - fully take part in economic activities.

  The ability of the poor to rise up the income ladder is what makes the U.S. so attractive to immigrants, most of  whom initially occupy the lowest income levels. If efforts to reduce inequality undermine the economy or reduce its dynamism, they may actually increase political instability and make it harder for people to rise out of poverty.

  "Moreover, nations strongly committed to equality are bound to limit immigration lest they be flooded with people looking for an immediate, and - thanks to the generous safety net of an egalitarian society - guaranteed, improvement in their economic status."

  It is no accident that poverty levels in the U.S. that declined so rapidly prior to the government's "War on Poverty" have stopped declining since its initiation.

  Posner acknowledges dissatisfaction based on concerns about economic equity or sheer envy. However, he notes the ability of democratic systems to respond to such pressures by reducing or masking the inequality sufficiently to maintain stability. Even envy may be readily channeled into constructive efforts at emulation as long as the economy is healthy and growing. Equality of opportunity may thus be a far more important factor for political stability than equality of outcome.
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  This examination becomes important to legal questions such as the extent of property rights. Secure property rights are essential for efficient, dynamic economic growth, but they may prove politically destabilizing if they are so strong as to close off all political responses to demands for the redistribution of wealth.
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  The author provides some statistical analysis which supports his thesis that income levels and income growth are positively correlated with political stability, and that equality of income shows no such correlation. He commendably concedes the weaknesses of the statistics and analytical methods available, but nevertheless offers it  as support for the proposition that it is high average incomes rather than income equality that promotes political stability. He also concedes the two way nature of this causality - economic growth correlates with political stability, but political stability clearly correlates with economic growth by reducing the risk factors in the risk/reward ratio.
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Application of cost-benefit analysis:

  Cost-benefit analysis is widely recognized as a part of government decision-making processes. Posner points out that it generally becomes the predominant process for the wide variety of government decision making processes that are significantly insulated from interest group influence.
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Issues of distributive justice are the province of tax and spending policies.

 

Cost benefit analysis is a valuable input that "compels the decision maker to confront the costs of a proposed action."

 

The justification for cost-benefit analysis need not include anything more profound than the pragmatic recognition that it increases the chances of observably superior outcomes.

 Cost-benefit analysis is an objective methodology at its best. Applied to the common law, it relies on a "wealth maximization" criterion. Issues of distributive justice are the province of tax and spending policies.
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  Studies indicate that cost-benefit analysis serves well for a wide variety of goals, such as the welfare of minority groups. It provides a pragmatic rational discipline for decision making - it is agnostic on the deep often conflicting issues - it focuses on risk regulation - and it forces explicitness in evaluations of regulatory decisions that often reveal bizarre anomalies that no one would defend.
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  Nevertheless, Posner readily concedes that cost-benefit analysis cannot be the only method for government decision making. However, it is a valuable input that "compels the decision maker to confront the costs of a proposed action."
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  With respect to the issues of interest to the author, he finds that none of the critics have been able to suggest a superior alternative. Indeed, cost-benefit analysis has become widely - if often incompetently - adopted both in the U.S. and abroad.

  "The theoretical objections to cost-benefit analysis have crumbled at the practical level and retreated to the academy. The spread of cost-benefit analysis, even when it takes the form merely of lip service to the principles of efficiency, confirms an international trend toward free markets. Cost-benefit analysis is an effort to introduce market principles into government, or to induce government to simulate market outcomes, or in short to make government more like business."

  Even inept cost-benefit analysis is useful, since the errors arm litigants that seek to judicially modify or overthrow regulatory actions. "It is more difficult to challenge a regulation that is based on nebulous equity grounds."
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  The wide range of objections concerning cost-benefit analysis is reviewed by Posner. He also reviews a variety of problems and issues involving cost-benefit analysis, like medical spending on the elderly - dissemination of information about health risks and hazards - public misperceptions of costs and benefits - the overvaluation of factors that can be quantified relative to those that are indeterminate - over valuation of novel risks like nuclear power compared to known risks like coal power - the difference in evaluation of "lives" and "risks," etc.
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  He rejects efforts to "improve" cost-benefit analysis that would substantially complicate it. In his view it is like accounting practices that include quantifiable material down through the financials to the bottom line while relegating indeterminate factors to footnotes. Cost-benefit analysis - like accounting - is a "practice" requiring professional skills for handling factors that may be relatively uncertain. It results in a professional opinion rather than a statement of fact. The author is primarily interested in the "practice."
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  Posner distinguishes "evaluation" from "decision." He emphasizes that cost-benefit analysis is a method of evaluation, but is only one of many factors in making decisions. The recognition of alternatives and the setting of goals, for example, is driven initially by other factors. However, cost-benefit analysis may induce the decision maker to reflect more deeply on such matters.
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  Of course, there are some conflicts that cannot be resolved by rational evaluation. Such "tragic choice" conflicts in no way diminish the use of rational evaluation methods in other cases. The justification for cost-benefit analysis need not include anything more profound than the pragmatic recognition that it increases the chances of observably superior outcomes.
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Legal precedent and statutory history:

 

 

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  Posner begins his essay on legal history and its uses with an explanation of the essays on history of Friedrich Nietzsche. Basically, Nietzsche asserts that history should be evaluated according to its uses rather than according to its accuracy. Is history a listing of facts - an understanding of how those facts developed - or an exercise in mythmaking in support of some societal purpose? (Those who prefer mythmaking on behalf of some ideological agenda - like Nietzsche - are always the harshest critics of efforts at the objective analysis of history.)
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  "With respect to the use of history to guide law," Posner asks whether historic precedent provides templates for resolving current issues - or - a straitjacket that blocks progress? (History does tend to repeat itself in many ways - but never without varying degrees of differences.)

  "Apart from the patient work of a relative handful of professional legal historians -- work that is painstaking, time-consuming, long-incubated, and consequently small in quantity -- most legal writing about history is done by judges, who are of course not legal historians, and by law professors, who are at best amateur legal historians. This work is normative in aim and thus invites consideration of its practical social value, which is the concern of Nietzsche's essay."

  Nietzsche basically criticizes the analysis of history because of the common weaknesses of its practices and the misuses of its results. He bluntly favors mythmaking on behalf of great causes.

 "[Nietzsche] invites us to think of historical inquiry and the historical sense as instruments rather than things of intrinsic value oriented exclusively to truth."

  History at its highest levels - like mathematics - is a pure intellectual art that generally has vast practical applications. Whether it consists of interpretation of some scattered prehistoric stones or the detailed record of observations of a laboratory experiment, history is an essential tool in all the practical arts and in all the sciences. As an art, it is totally dependent on the skills and character of the historian for its accuracy and utility.
 &
  The writing of history requires a professional approach involving professional understanding and ethics and the application of best professional practices. That this is frequently lacking is a basis for skepticism and criticism of much history, but is no basis for cynicism or criticism of the analysis of history in general.  Both statistics and historic facts are the playthings of propagandists who routinely invoke them incompletely and out of context and subject to twisted analysis for propaganda purposes. This is a reflection on the mythmakers - the propagandists - like Nietzsche - not on  professional statisticians and historians.
 &
  At its best - and best professional practices have improved immensely since Nietzsche's time - history is capable of illuminating the past, providing essential context for understanding the present, and even opening narrow but revealing windows on the probable future.

  While Posner accepts accuracy in historic analysis as a "good," he notes that there are many societal "goods," and that historical knowledge and precedent is not always helpful -- and can be obstructive -- of efforts to achieve them. One notorious example is the way that remembrance of the conflicts and atrocities of the past can get in the way of current efforts at the establishment of peaceful and fruitful relations between peoples.

  However, this is more a criticism of application - of drawing the wrong lessons - than of history itself. It is like criticizing mathematics because of its use in the development of bombs.

"Judges rewrite history, like Commissars."

  Posner rejects the "purely instrumental" - the Orwellian - approach to history. However, he asserts that judges use this approach all the time. "Judges rewrite history, like Commissars." Rather than be in thrall to history, they bend history "to the service of life," - like Nietzsche.
 &
  The author cites with approval recent scholarship of "legal realists and critics of lawyers' history" that debunks attempts to cloak departures in the law in the garb of interpretation of precedent and the Constitution. He cites the modern Constitutional rights of free speech and of privacy - neither of which existed as a robustly enforceable right before the 1950s.

  "The legal profession's use of history is a disguise that allows the profession to innovate without breaching judicial etiquette, which deplores both novelty and a frank acknowledgement of judicial discretion and likes to pretend that decisions by nonelected judges can be legitimated by being shown to have democratic roots in some past legislative or constitutional enactment. Since the most convincing deceptions are those rooted in self-deception -- because then the deceiver is not in danger of giving himself away --, one is not surprised that many lawyers and judges think of law as the application to the present of the lessons of the past as reflected in statutes, reported decisions, and other materials created in the past to govern the future. Yet the truth is that, for the most part, these past settlements of disputes frame and limit, but do not dictate, the outcome of today's cases."

Modern Constitutional law is a pragmatic judicial effort to free the "living" from the rule of the "dead" in behalf of "new solutions" to today's "new problems."

  Modern Constitutional law has descended into a rhetoric of competing myths about Constitutional meanings, Posner explains. He bluntly accepts the fact that modern Constitutional law is a pragmatic judicial effort to free the "living" from the rule of the "dead" in behalf of "new solutions" to today's "new problems." However, since that is the province of the political arms of government, not the judiciary, the courts cloak their efforts in a legal history - in the application of precedent and Constitutional theory - that is increasingly mythological.

  "I worry that some judges fool themselves into thinking that history really does deliver the solutions to even the most consequential legal issues and thus allows them to duck the really difficult question -- the soundness of the solutions as a matter of public policy."

  Unfortunately, this has not always been confined to simple contests between the "living" and the "dead." With increasing frequency it involves contesting groups of the "living." When the courts decree who the winners and losers are - and determine "the soundness - - - of public policy" - as a matter of statutory law or legal precedent, at least the contest remains in the political arena - to be fought with ballots instead of bullets. However, when the courts pick the winners and losers as a matter of Constitutional law - as they have with respect to such contentious issues as abortion rights and criminal law enforcement procedures - they as a practical matter remove those issues from the ordinary political arena.
 &
  Unless the Constitutional bases for such decisions are very clear, the losers - being very much alive - rightly take umbrage and begin to attack the courts themselves. The courts have been forced into unseemly retreat with respect to many judicial criminal law reforms, and have recently begun trimming their sails over abortion rights as well. In California, three California Supreme Court justices were voted off the bench by an irate electorate. Political contests for judicial positions have become extraordinarily heated in many other states as well.
 &
  For this and other reasons, except in the clearest cases, the courts used to follow a very useful principle that favored avoidance of decisions based on Constitutional law whenever other grounds for decision were available. This principle was abandoned by the Warren Court in the 1950s.
 &
  Since the advent of the activist Warren Court, the Supreme Court itself began reducing the number of Supreme Court precedents cited in its majority opinions. That trend has continued during the long term of a conservative Rehnquist Court that is apparently determined to ignore Warren Court precedents whenever possible. The result of judicial activism thus appears to be a Supreme Court with an increasing contempt for the constraints of existing law.
 &
 
The politicization of the courts has predictably proceeded as one would expect - undermining public respect for the judiciary and even threatening the country's essential rule of law system. After all, if the courts no longer accept the constraints of the law, why should anybody else?

Law is best regarded "as a servant of social need, a conception that severs the law from any inherent dependence on its past." The only constraint is one of "reason."

  The history of the common law, of course, is anything but rigid. It has always included methods of development and evolution - of new applications to new circumstances. (The new circumstances faced by the colonists in North America resulted in a wide variety of divergences between the law in England and in the colonies and then in the new United States.)

   "By rejecting strict stare decisis, American judges have empowered themselves to alter doctrine to keep abreast of changing circumstances. As a result, the structure of common law doctrine -- broadly understood as doctrine forged in the process of deciding cases, whether or not they are 'common law' cases in the technical legal sense -- seems on the whole pretty efficient. Generally worded provisions of statutes, constitutions, and contracts allow judges to mold them to current needs and values. [One commentator] has proposed that courts be allowed to 'overrule' archaic statutes as if they were obsolete precedents, and it is possible to argue that courts are already doing this, only calling what they do 'interpretation.'"

  Interpretation of legal precedents, statutes and contracts is not where the judicial system gets into trouble. Those adversely affected can still seek corrective legislation or changes in contract terms for subsequent transactions. It is in the field of constitutional law that problems can arise, since these rulings can remove contentious issues from ordinary political influence and leave those adversely affected without practical political remedy.

  Legislative innovation is, in fact, constrained by Constitutional checks and balances, Posner points out. Statutory law faces difficulties in both enactment and amendment. The Constitution has been made particularly difficult to amend, especially for provisions that are not amenable to changing interpretations. The right to a jury trial in civil cases is still based on a $20 threshold.

  Isn't it interesting how so many of those who have deplored Congressional gridlock have recently become staunch supporters of the Senate filibuster - based on a mere rule of the Senate rather than a statute or Constitutional provision? Somehow, despite the assertions of gridlock, legislation keeps pouring out of Congress and the state legislatures in ever greater quantity, and the expansion of the U.S. Code keeps accelerating.

  According to Posner, law is best regarded "as a servant of social need, a conception that severs the law from any inherent dependence on its past." The only constraint is one of "reason." Courts must explore their reasons for diverging from similar cases in the past, but this is no more of an imperative than that they explain rejection of "any plausible potential source of guidance to deciding the present case."
 &

  The reliance interest of business and society in precedent and past interpretations of statutes is recognized by the author. This reliance interest justifies the rejection of changes that offer just minimal benefit. He opposes any "restless experimentation with political and legal institutions."
 &
  However, it is now accepted that stare decisis - the following of precedent - is not rigid doctrine. Judge-made rules of law increasingly appear inherently revocable, attenuating "the reliance that they invite and receive." (That's very nice to know!)

  Isn't it interesting how, now that conservative judges are increasingly likely to be appointed to the Supreme Court, liberals have suddenly gained a greater appreciation for the value of stare decisis?

"Commitment, reliance, information, even inertia are reasons for standing by decisions made in the past."

  In short, legal precedents are only as applicable to current cases as is their reasoning, Posner asserts. Indeed, he recognizes that "commitment, reliance, information, even inertia are reasons for standing by decisions made in the past."

  If this is all Posner is saying, then he is not saying anything new. "Where the reason ends, the rule ends," is one of the basic principles of the common law and has long provided a principled basis for flexibility in adapting the law to deal with new or evolving situations.

  "The history of the Supreme Court is one of cyclicity rather than progress -- cycles of innovation and retrenchment, of liberal thrust and conservative parry, conservative thrust and liberal parry. Disinterested judicial historiography would enforce the lessons of cynicism that Nietzsche found so debilitating. Maybe that is why we have so little such historiography."

  But if these legal flip flops occur in increasing numbers and with increasing speed, that cannot help but have a noxious impact on respect for the law.

  Modern originalism is based on its own dubious historical views, Posner correctly points out. Its dubious use of history, however, misses the point. Its purpose is "to curb judicial discretion by adopting a mechanical method of interpretation, one essentially lexicographical and algorithmic rather than historicist."
 &
  Posner insists that modern lawyers and statesmen are every bit as good as the founding fathers, and further benefit from the experience and knowledge of the intervening two centuries. They would do just as well - indeed probably better - at constitution drafting than the founding fathers.

  Can Posner really be this naÔve? Is there any doubt that drafters of a modern constitution would be hog-tied by competing modern dogmas and vested interests? For a good example of what could be expected of modern constitution drafters, one need only look across the pond at the monstrosity produced for the European Union - and its resounding rejection by the European people.

  "I have suggested that a policy of generally adhering to precedent, that is, of deciding cases in the same way that like cases have been decided previously, both economizes on judges' and lawyers' time and enables the decided cases to serve as guides to persons who want to avoid being sued."

  However, Posner asserts that precedent should not be "venerated" or applied in cookie cutter fashion to novel issues or issues that are only analogous. When there "is no metric of similarity that will enable a later case to be decided by reference to an earlier one," judge-made law must evolve to deal with the new situation.

  This is so unexceptional an assertion that Posner's rejection of "veneration" begins to look like a straw man. The question has never been whether the common law - including interpretation of statutory and Constitutional provisions - must evolve to deal with new situations. This has always been the course of development of common law.
 &
  The real question is how that evolution is to occur - the deference to be accorded the other arms of government - and the extent of statutory and Constitutional constraints that the courts MUST recognize if the nation is to continue as a Constitutional democracy with a rule of law legal system.

Political policy setting by the courts:

  Posner's primary objection rests on the indeterminacy of history. Has history guided judicial decisions, or have judges manipulated history to support the decisions they preferred?
 &

Courts must develop law based on analysis of social policy.

  He easily comes up with several examples of established Constitutional interpretation for which history has been unable to provide a solid basis.

  "The originalists of the present day, such as Justice Scalia, are reacting to the exercise of free-wheeling judicial discretion by the courts during the era of Earl Warren and, to only a slightly lesser extent, of his successor, Warren Burger. Not that their practice is consistent; I am only speaking of their preachment. The originalists want or at least say they want to minimize judicial discretion, and they have devised a kind of algorithmic mechanism for doing so. The historicists in law want no such thing. They mainly want to forge a historical pedigree for their preferred positions in order to deflect charges of judicial creativity."

  Posner's answer is a frank acknowledgment that courts must develop law based on analysis of social policy. He asks: "Why should the past rule the present?"

  "If the alternative is policy analysis, as some pragmatists would be inclined to answer, this may seem to be jumping from the frying pan into the fire -- substituting for one indeterminate inquiry another equally indeterminate one. But in grappling with issues of policy the judge is at least dealing with something that matters, and he can hope to make some progress and reduce error. Moreover, he is facilitating the correction of errors by refusing to hide behind a claim to possess an arcane methodology impenetrable to 'mere' policy makers and other noninitiates."

  A chapter debunking exercises in the misuse of legal history and theory is provided by Posner. He draws on the work of Yale law professors Bruce Akerman and Paul Kahn.
 &
  As an extreme example of reverence for precedent, he discusses the 19th century effort of a German theorist, Carl von Savigny, to tie contemporary German law to Roman legal principles. Posner contrasts that with the approach of Oliver Wendell Holmes, who emphasized the contemporary expectation of pragmatic and convenient solutions to legal issues. The law thus could not be placed in an historical strait jacket, but had to adapt to current requirements.
 &
  Posner speculates that Savigny may actually have had a reformist agenda that shaped his scholarship. Roman law was in many respects superior to and inconsistent with feudal rights. Savigny's use of Roman law to establish a rule-based system of law was probably what was then needed, given the disunity, continuing feudal law influences, and legal uncertainty in a divided Germany in the early 19th century.
 &
  Holmes was dealing with the more established legal system in the U.S. during the last half of the 19th century - a legal system that enjoyed a good deal of public confidence and support. Holmes thus could apply the law with much more flexibility without risking public support and confidence. (It is precisely that precious public support and confidence that is placed at risk when the courts unnecessarily dictate public policy as a matter of Constitutional law.)

  "For Holmes, the best legal thought is modern, because only a modern thinker can come to grips with modern problems. History provides a repertoire of concepts and procedures that can be drawn upon to deal with modern problems. To that extent it is a resource and a help. But it is also a drag, because of the legal profession's methodological conservatism, which by positing a duty of continuity with the past retards adaptation to the needs of the present."

  As an example supporting his preference for an economic efficiency approach, Posner discusses differing approaches to the law governing conflicting claims to the possession of property. Who has the right to unclaimed lost property - the finder or the owner of a store in which it was found? There are similar problems of joint possession - future rights - rights to intellectual property to which many may have contributed - abandoned property - bona fide purchasers of stolen property (a particularly timely subject with respect to stolen art) - and much more that the law must deal with.
 &
  Property law professors have puzzled their students with such problems for many decades. Posner uses these problems to discuss the various approaches for their legal resolution - ultimately explaining the superiority of economic analysis for resolving contested claims to property rights.

"[Posner stresses] that the concept of possession does not drive the analysis when an economic view of the issue is taken. Whom to give possession to is determined by asking which allocation of possessory rights would be most efficient."

  Modern law should be shaped to fulfill the social needs of the present - like economic efficiency - rather than held in a strait jacked of existing rules, Posner asserts. Economic analysis provides an objective method for defining a particular social need - for economic efficiency - applicable across many fields of law.

  "Rules abstract a few relevant facts from the welter of circumstances of each actual case and make the selected facts legally determinative. The consequence is an imperfect fit between rule and circumstances, resulting in some outcomes that are erroneous from the standpoint of the substantive principle undergirding the rule. This is a cost, but it must be traded off against the benefit of the rule in reducing the cost of litigation and in reducing legal uncertainty. Uncertainty is costly in itself and also may invite judicial corruption, whether financial or political, by making it difficult for outsiders to determine whether a judicial decision is in accordance with law. If it is especially urgent at a particular stage in a society's legal development to have clear legal rules, then the approach taken by Savigny to the law of possession may well be the best one to take -- from an economic standpoint, as my discussion of the costs and benefits of rules versus standards has been intended to suggest."

  Thus, in the end, Posner provides a fairly balanced view of the need for both predictability and flexibility in the law - until he gets to the extension of Constitutional law to particularly contentious contemporary social issues. Except where Constitutional principles are clearly applicable, it is the legislative branch that must play the determining role in the setting of public policy - especially with respect to contentious issues - as with "hate crime" legislation. (See, below.)
 &
  Playing loose with the Constitution is different! When the courts make the Constitution an ideological shuttlecock, "rule of law" becomes "rule by men" - the "philosopher kings on the bench" - and the courts inevitably become a political battleground.

"Hate crime" legislation:

  A brief but well nuanced discussion of emotion - its multifaceted nature, and its wide variety of impacts relevant to legal issues - is provided by the author. This sets the stage for his explanation of why he believes that "hate crime" legislation is an error.
 &
  The relevance of various emotional factors is discussed by Posner with respect to the criminal law objectives of deterrence and confinement. Sometimes, emotions make a criminal more dangerous - as with serial sex offenders and serial killers - often one and the same. Sometimes, emotions indicate that a criminal is less dangerous - as when he acted only in response to provocation.
 &

"Hate crime" legislation is the injection of identity politics into the criminal law.

  How, then, should the standard "hate crimes" legislation be evaluated? Posner argues that hate crime legislation is at best unnecessary and at worst unwise. It is the injection of identity politics into the criminal law.
 &
  If it can be shown that a criminal act is more harmful - or a criminal is more dangerous - more difficult to deter and/or more likely to repeat - because of hatred for the group to which the victim belongs, then there is no need for hate crime legislation. Just demonstrating the harm and/or dangerousness should be enough to lead to harsher sentences - just as it should for all similarly dangerous criminals and similarly harmful acts.
 &
  Moreover, even if these showings can be made, the legislation is not just unwise - it sets a dangerous precedent. It establishes certain groups - blacks, Jews, homosexuals - as qualifying for extra protection under the law. The classic hate crime was the murder of prostitutes - as in the case of Jack the Ripper - but prostitutes have not been included in the protected groups. And, "the advocates of punishing [hate crimes] more heavily do not insist on linking greater punishment to greater dangerousness."

  "If, for the sake of maintaining the political neutrality of criminal law, the proper criterion for grading criminal punishment is dangerousness, the presence and object of hatred are relevant only insofar as they bear on the criminal's dangerousness. A person who kills homosexuals because he hates homosexuals is more dangerous than a person who kills a man who has cuckolded him, but not more dangerous than one who kills prostitutes because he hates prostitutes. As long as criminal sentencing takes full account of the bearing of the criminal's object on his dangerousness, the nonpolitical concerns that motivate advocacy of the 'hate crime' classification are taken care of automatically and there is no need for the classification."

  Moreover, the legislation inevitably punishes thought, not action.

    "If two crimes differ not at all in dangerousness but only in the fact that one is motivated by a belief that the judicial authorities reprobate -- a belief, for example, that homosexuals are evil -- then to punish that crime more heavily is to punish belief, not action."

Ideology and interest-group politics have no proper place in a criminal justice system. In rejecting this precept the supporters of hate crime laws are playing with fire.

  The Supreme Court decision upholding hate crime legislation is criticized by the author. This type of "vague and coarse-grained justification for punishing opinions" is usually rejected by the Court.

  "The objection, in short, is not to varying the severity of punishment for crime according to the harm suffered by the victim or the deterability of the criminal. It is to varying that severity in order to make a political or ideological statement or, what is often the same thing, to accommodate the pressures of politically influential groups. Ideology and interest-group politics have no proper place in a criminal justice system. In rejecting this precept the supporters of hate crime laws are playing with fire. It was not long ago that a political or ideological conception of the role of criminal law would have justified less, rather than more, legal protection for blacks, homosexuals, and other minorities."

  This is a good place for evaluation of Posner's thesis - that judicial discretion should be broadened in the interest of achieving desired social policy goals. There are, in fact, widely recognized weaknesses in judicial establishment of social policy.

  • Not all judges agree on every social policy. Even if social policy is established by a superior court, individual cases may have varying countervailing factors that various judges would give different weights to, turning the law into more of a lottery.
  • Judicial establishment of social policy is often inefficient and ineffective. It is seldom concerned with boundaries - or the political compromises and accommodations of varying interests essential in democratic systems - or the appropriate allocation of scarce resources. The judicial establishment of product liability law is now about four decades old, and legislatures are still having trouble establishing appropriate boundaries - something the courts seemed entirely incapable of doing until just recently. It was not until 2003, in State Farm Mut. Auto. Ins. Co. v. Campbell, that the U.S. Supreme Court finally established some limits under the Fourteenth Amendment on the award by state courts of punitive damages in economic harm cases.
  • Within the limits of the Constitution, the electorate is entitled to impose their will on their judges through appropriate legislation, and require them to change rulings that are broadly viewed as unsatisfactory. Requiring judges to impose more severe penalties for certain crimes is entirely appropriate. Even with respect to economic activities, the public is entitled to reject efficiency as social policy. Entitlements, for example, are inherently terribly inefficient, although the administration of entitlements as efficiently as possible is terribly important.

  FUTURECASTS  agrees with Posner that the "hate crime" legislation is misconceived - but cannot imagine that the judiciary should do anything but accept it as the will of the peoples' representatives and do its best to enforce it. The only way to override this legislation is by some activist Constitutional ruling that would be widely - and justifiably - resented. If uniformity of sentencing is desired, however, the correct response would be to accept the legislation as the establishment of social policy and apply it to hate crimes against prostitutes and other groups not mentioned in the legislation.

Emotions and the law:

 

&

  The criminal law responds to many other factors besides the social policies of deterrence and prevention and appropriate response to harm caused, Posner acknowledges. One such factor is moral outrage. Under modern Supreme Court procedural requirements, moral outrage plays a significant role in the infliction of capital punishment. On a less lofty note, it plays a role in the punishment of cruelty to animals.
 &

The unemotional application of economic analysis is actually empathetic, because it highlights "the consequences of the litigation" for those not present in the courtroom.

  "Shaming penalties" and victim impact statements in sentencing procedures are analyzed by Posner in similar utilitarian manner. He defends the use - indeed, the necessity - of indignation and empathy in the decision making processes of judges and juries. Without a sense of the widespread indignation that led to the enactment of laws based on aspects of morality, judges and juries could not make sense out of rules against nudity or urinating or intercourse in public, mistreatment of animals, intercourse with beasts or corpses, polygamy, and such.

  "[A sense of judicial indignation] is the correct response if you think as I do that it is not the proper business of judges to dismantle the moral code of their society or, what would come to much the same thing, to insist that it be rationalized convincingly."

  Indeed, the unemotional application of economic analysis, Posner asserts, is actually empathetic, because it highlights "the consequences of the litigation" for those not present in the courtroom. "Future victims" are of concern whether in sentencing murderers or enforcing landlord rights or evaluating tax laws.
 &

Behavioral law and economics:

  Modern criticism of market theory that attacks its reliance on a hypothetical "rational man" must perforce be confronted by the author. He points out that these critics - the "behavioral economists" - offer only explanations, but no usable theory that might take the place of rational choice economic theory.
 &

Explanation and prediction are two different things.

 

"Describing, specifying, and classifying the empirical failures of a theory is a valid and important scholarly activity. But it is not an alternative theory."

  The critics fail to provide any alternative analytical method or improvements that better explain how markets work. Their concepts have no predictive power. "Explanation and prediction must not be confused."

  "It is undertheorized because of its residual, and in consequence purely empirical, character. Behavioral economics is defined by its subject rather than by its method and its subject is merely the set of phenomena that rational-choice models -- or at least the simplest of them -- do not explain. It would not be surprising if many of these phenomena turned out to be unrelated to each other, just as the set of things that are not edible by man include stones, toadstools, thunderclaps, and the Pythagorean theorem. Describing, specifying, and classifying the empirical failures of a theory is a valid and important scholarly activity. But it is not an alternative theory."

The preferred alternatives of the behavioralists to market solutions frequently rely on the use of "experts," but "the expert, too, is behavioral man" and is just as likely to behave in unpredictable and even irrational ways.

  There are many methodological weaknesses in behavioral economics. The author notes that university students typically comprise the principal subjects of experiments in behavioral science - an obvious weakness in methodology. He handily shreds the validity of a variety of the experiments used by the behavioralists.
 &
  Experimental situations are often artificial - situations unlike what the experimental subjects are used to in real life. Signaling and real world selection effects are typically not accounted for by these experiments. Their preferred alternatives to market solutions frequently rely on the use of "experts" but "the expert, too, is behavioral man" and is just as likely to behave in unpredictable and even irrational ways.
 &
  Many of the "cognitive quirks and weaknesses of will" found in these experiments have biological roots no longer pertinent for modern life - like the fear of flying. However, these may often be better addressed by education that permits rational market solutions than by the reforms offered by the behavioralists.
 &

Finding the facts:

 

&

  A utopian pure search for truth is beyond the capacity of any human judicial process. In the real world, costs are very real constraints. Posner applies his mathematical analytical methods to demonstrate how benefits must be weighed against costs - broadly defined - and justified in relation to the importance of the outcome.
 &

"Accuracy in adjudication is an economic as well as a moral and political value."

  The benefits include not just the likelihood of finding the truth, but also such factors as the public confidence in the legal system, the deterrence of breaches of criminal and civil law, and the avoidance of the harm caused by erroneous results.

  "Deterrence plays a starring role in the economic analysis of evidence because it links the concern with accuracy that is so central to the evidentiary process with the economist's conception of law as a system for creating incentives for efficient conduct. Since the accurate determination of facts at trial is important to the efficacy of law in imparting efficient incentives, accuracy in adjudication is an economic as well as a moral and political value."

  Of course, the importance of a case may be different for private parties than for the state and society as a whole - something that becomes apparent in the way private litigants and the state may handle some particular litigation. Importance also varies between criminal and civil cases - typically reflected in differing burdens of proof.
 &

The U.S. does use inquisitorial systems for its administrative agencies.

  The performance of the adversarial system in the U.S. is compared by Posner with that of the inquisitorial systems in other countries. He provides an interesting summary and evaluation of various aspects of the adversarial system and trial by jury. The U.S. does use inquisitorial systems for its administrative agencies. These have not been free from fairly widespread dissatisfaction with their results.
 &
  The jury system has many well know weaknesses, but also many strengths, not the least of which is its accommodation of the public's skepticism about judicial competence and objectivity. Judges are, after all, members of the political class and frequently are political appointees. Juries are more likely to include members of the peer groups of the private parties. That jury trials must generally be run from start to finish without major interruptions facilitates public monitoring of the process. Such factors are important "in a culture that distrusts officials."

  "A jury system counteracts judicial bias and reduces the incentive to bribe judges. It counteracts political bias as well, a potentially important factor especially in a system of elected judges. The judge who sits without a jury cannot 'blame' the result on others; he can diffuse responsibility if he sits with a jury. And jurors unlike judges do not have career incentives to render verdicts that are popular with whoever controls judicial careers."

  While admittedly far from perfect, the jury system works well.

  "[Almost] all judges who sit with juries are struck by their conscientiousness, whether or not the judge agrees with the jury's verdict. - - - American judicial systems strive, apparently with some success, to create an atmosphere in which the jurors, caught up in the drama of decisionmaking, do their best to render a sound verdict."

  Unfortunately, it is the odd instances of miscarriage of justice that get the publicity.

  "The very fact that the American jury trial facilitates public evaluation -- that the mistakes of the system are harder to bury -- guarantees that the system will look less efficient than one that operates behind a veil."

  But that does not mean that it is always the best system available. Jury trials are certainly more time consuming and expensive. Most jury trials are for criminal law and tort cases. Other types of cases are frequently tried before a judge without a jury. Many private parties opt for arbitration before lay judges with relevant expertise, but these are predominantly contract cases.
 &
  Posner suggests several reforms of the jury trial system (many of which are increasingly found in various state court systems). He points out that, in many respects, it is generally only the most ambiguous and difficult cases that make it to trial. Even fewer are litigated fully through the appellate process.
 &
  The vast majority of the easier cases are not litigated or are settled at some point in the litigation. Plea bargains resolve the vast majority of criminal cases. The Supreme Court reviews only the most ambiguous of the most important cases. Thus, the system taken as a whole works far better than is evident just from examination of the cases litigated through to final decision.

  "But a selection effect makes the overall accuracy of the system difficult to observe. The procedural system as a whole is more accurate than the trial component of it, but it is the latter that is visible. One-sided cases are more likely to be settled before trial, usually with little publicity, than toss-ups are, and so the latter are overrepresented on the trial docket, which is highly visible."

The Ninth Circuit:

 

The book is in many respects a potpourri of only vaguely related professional intellectual concerns of the author.

  There is much more in this book that is of interest, but primarily for scholars and those with professional interest in the law. Posner provides similar analyses of the rules of evidence used in jury trials - including the "harmless error" rule and some of the problems involved in determining whether evidence is admissible or inadmissible. He also evaluates the uses of "citations analysis" for legal studies.
 &
  The book is in many respects a potpourri of only vaguely related professional intellectual concerns of the author.
 &

  The ongoing controversy over the performance of the huge Ninth Circuit Court of Appeals is also analyzed by Posner using a variety of statistical tests. These involve rates of unanimous reversal that thus obviously don't involve ideological differences with the current Supreme Court - rates of summary reversal - and rates of citation by courts in other circuits that are not obliged to follow Ninth Circuit rulings. His conclusion is that the quality of Ninth Circuit work is at or near the bottom for the federal circuits, but that this is apparently due more to the size of the 28 judge court than to ideology or accidents of appointment. The next largest circuit has 17 judges.

  This evaluation supports the argument that it is time to split the Ninth Circuit into two smaller circuits. However, this misses the point that the real basis of criticism is not over quality but is in fact over the ideology of this most liberal of the circuits.

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  Copyright © 2005 Dan Blatt