Posner on Reforming Legal Practice

Judge Richard Posner does a fine job of angering just about everyone from time to time, though he often does it in service to reforming the legal profession from top to bottom. Good for him. While I am far from being in perfect agreement with Posner about a great many things, I can’t help but think he’s on to something with his latest (academic) article, “What is Obviously Wrong with the Federal Judiciary, Yet Eminently Curable – Part I,” 19 Green Bag 2d 187 (2016). Here are some excerpts (but definitely read the whole thing):

Another way to characterize the legal profession in all three of its major branches – the academy, the judiciary, and the bar – is that it is complacent, self-satisfied. Chief Justice Roberts in his annual reports likes to describe the American legal system as the envy of the world. Nonsense. The system has proved itself ineffectual in dealing with a host of problems, ranging from providing useful (as distinct from abstract theoretical) legal training at bearable cost to curbing crime and meting out rational punishment, providing representation for and protection of the vast number of Americans who are impecunious or commercially unsophisticated (so prey to sharpies), incorporating the insights of the social and natural sciences (with the notable exception of economics, however), curbing incompetent regulatory agencies such as the immigration and social security disability agencies, and limiting the role of partisan politics in the appointment of judges. The system is also immensely costly (more than $400 billion a year), with its million lawyers, many overpaid, many deficient in training and experience, some of questionable ethics.

. . . .

The fault is the culture. Our legal culture, in contrast to that of most countries in the world (notably Japan and the nations of Continental Europe), is “adversary,” in the sense that the judge is the arbiter of a contest – a drama, really – put on by the lawyers for the contending parties. (In the inquisitorial system, as the system in force in most other countries is called, the lawyers can nominate witnesses but the judge decides whether to call them and he questions them, at least initially.) The lawyers in a case in our system often differ greatly in quality, and this distorts the adversary process. Often one of the parties, moreover – invariably the plaintiff if it’s a civil case and the defendant if it’s a criminal one – has no lawyer, which shifts the odds enormously in favor of the represented party regardless of the merits of his case.

Differences in the quality of lawyers wouldn’t matter a great deal if, for example, they were compensated as judges are: with a uniform government salary unrelated to outcomes or the relative wealth of the respective parties in a case. (The analogy is to a “single payer” system of medical care.) There would then be no contingent fees and no $1100 an hour billing rates. My pay isn’t docked if I’m reversed by the Supreme Court, and neither do I get a bonus if the Court affirms a decision of mine, or for that matter denies certiorari in every single case in which the loser in a case in which I wrote the majority opinion asks the Court to take the case and reverse me. That’s not how lawyers in our system are compensated.

. . . .

At the level of form, the first thing to do is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist as many do that the citations in their opinions conform to the Bluebook; also for students at the Yale Law School who aspire to be selected for the staff of the Yale Law Journal – they must pass a five-hour exam on the Bluebook. Yet no serious reader pays attention to citation format; all the reader cares about is that the citation enable him or her to find the cited material. Just by reading judicial opinions law students learn how to cite cases, statutes, books, and articles; they don’t need a citation treatise. In the office manual that I give my law clerks only two pages are devoted to citation format.

. . . .

[Footnote 16] I offered the following litany of judicial offenses against the English language in my book Reflections on Judging 250 (2013): Latinisms (such as “ambit,” “de minimis,” “eiusdem generis,” “sub silentio”); legal clichés (such as “plain meaning,” “strict scrutiny,” “instant case,” “totality of circumstances,” “abuse of discretion,” “facial adequacy,” “facial challenge,” “chilling effect,” “canons of construction,” “gravamen,” and “implicates” in such expressions as “the statute implicates First Amendment concerns”); legal terms that have an ambulatory rather than a fixed meaning (such as “rational basis” and “proximate cause”); incurably vague “feel good” terms such as “justice” and “fairness”; pomposities such as “it is axiomatic that”; insincere verbal curtsies (“with all due respect,” or “I respectfully dissent”); and gruesome juxtapositions (such as “Roe and its progeny,” meaning Roe v. Wade and the subsequent abortion-rights cases). To this add: timid obeisance to clumsy norms of politically correct speech; unintelligible abbreviations gleaned from the Bluebook; archaic grammatical rules (for example, don’t begin a sentence with “But,” “And,” “However,” or “Moreover” – these words are “postpositives,” and never say “on the other hand” without having first said “on the one hand”); archaic rules of punctuation, especially placement of commas; and offenses against good English (“choate” for “not inchoate,” “pled” for “pleaded” when referring to a complaint or other pleading, “proven” as a verb instead of “proved,” “absent” and “due to” as adverbs, “habeas claim” for “habeas corpus claim,” “he breached his contract” for “he broke his contract”) or against good Latin: “de minimus” for “de minimis” and ejusdem generis for eiusdem generis).

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