Judge Posner's Challenge to the Philosophy of Law
Willard F. Entemann
In the context of his experience on the bench and his interest in the general theoretical approach of "Law and Economics," Richard Posner has developed an important empirical theory about judicial behavior which has significant national and international implications. In the economic analysis of law, economics, understood roughly as capitalism, is taken as fundamental to the understanding and application of law. Posner's theory is presented as a further development of the general program. In this paper, I will examine important conceptual issues related to Posner's theory, and I will contrast it with what I will call the "conventional view" of judicial behavior.
Economics holds that people make decisions based on efforts to maximize their utilities. That is sometimes expressed as an attempt to maximize happiness or self-interest. Two of Adam Smith's insights are especially relevant here. A micro thesis holds that in the commercial world people attempt to maximize their own utility while a macro thesis holds that in a competitive economy, the pursuit of utilities on the part of producers and consumers automatically leads to maximum welfare. Economists refer to utility maximization as rational, and say any exceptions are so rare that they do not pose significant exception to the general economic assumption.
Posner is concerned because the conventional view of judicial behavior presumes that judges and justices are, on these terms, irrational. For the purposes of his analysis, Posner concentrates on judges and justices referenced in Article III of the US Constitution. I will follow his lead here, though both of us recognize extrapolation to other judicial settings would be reasonably simple. From an international perspective, Article III judges have been more exempted from the temptations and constraints of employment than other judges. Posner points out that Article III judicial tenure is even more secure than academic tenure:
Beyond that, the judges in question will not have their pay lowered, and judges who resist such temptations will not have theirs raised because all judges of the same rank are paid exactly the same. As Posner says, "It is this unique insulation of federal appellate judges from accountability that makes their behavior such a challenge to the economic analysis of the law, and more broadly to the universalist claims of the economic theory of human behavior."
Standard economic analysis holds that if employers are successful in structuring conditions of employment, the self-interested behavior of employees will conform to the interests the employer seeks. In the case of judges, the employer is the government. The conventional view of judicial behavior would seem hold that the purpose of the insulation is to free judges and justices to make decisions based on a disinterested understanding of the law. Presumably, that was the meaning in the quotations provided at the outset of this paper.
Posner's Theory. Posner argues that what I have called the conventional view is in conflict with basic economic theory. If the conventional view is correct, the plethora of judicial decisions provides a sufficiently large exception to maximization of utility theory that we should conclude that it is not only falsifiable but also falsified. If, however, economic theory is correct, the conventional view is mistaken and, as the second half of Posner's title indicates, far from freeing judges and justices to make disinterested decisions, the insulation only changes the ways in which they maximize their utilities. Posner argues that judges and justices are rational, and he tells us in what ways they pursue their self interest in the context of the unusual employment conditions.
Posner identifies two primary forces that act upon judges and justices in the process of making their decisions and says that, since the insulation has eliminated other forces, these have become the dominant ones. He says judges enjoy hearing cases and making judicial decisions and, thus they are a source of positive utility. Posner analogizes this to spectators of theater productions. Presumably, they enjoy watching the drama unfold and they enjoy making decisions in the form of granting or withholding applause. He argues by analogy for a positive utility in voting per se by pointing out that people vote in spite of the fact that their vote has a vanishingly small chance of affecting the outcome. He completes the analogies by telling us that judges and justices enjoy both watching arguments in cases unfold and their role as voters. Thus, he suggests we should conclude the judges and justices have a positive utility in these aspects of the job to which they have been appointed. That fits well with utility theory since it means the judges are operating out of self-interest and it fits well enough with conventional view since that view does not hold that judges and justices should dislike their jobs.
Along with the judicial utility function, Posner identifies another major force in the lives of judges and justices. He says like most of us judges and justices enjoy their leisure. In fact, justices may enjoy their leisure even more than others. For example, he says. "Because the judiciary has been placed on a nonprofit basis, we should expect that judges on average do not work as hard as lawyers of comparable age and ability. I believe that this is true, at least of appellate judges." Of course, most of us enjoy our leisure time and activities. However, most of us are not as insulated from the pressures of employment. Judges and justices have considerable control over how they spend their time. They can choose to emphasize either judicial or leisure activity. Posner tells us that, whereas most enjoy hearing cases and making decisions, they do not enjoy writing opinions. Not only is opinion writing time consuming, but in addition, poorly written opinions may subject them criticism. Posner says the first thing judges and justices do as case loads increase is to delegate opinion-writing to their clerks. While that takes some of the burden off them, it does not remove it entirely because, in the end, their names will appear.
Thus far, we have dealt primarily with procedural matters. They should arouse some concern for those who take judicial opinions to be centrally important for the philosophy of law. The detailed precise examination of each turn of phrase in judicial opinions that characterizes much legal study in general and the philosophy of law in particular may be based upon false assumptions about the actual operations of the law. To turn to an analogy in the philosophy of science, it would be as if we were to discover that scientists did not really take the precision of calculations seriously but were ready to accept whatever seemed convenient as produced by their graduate assistants. Nevertheless, this discovery need not concern the conventional view much since that view is directed toward a disinterested interpretation of the law rather than carefully developed judicial opinions. However, Posner tells us the trade-off has an impact on the substance of the decisions as well. This is not the place to examine the many ways Posner cites that the maximization of judicial utility influences the decision. As a case in point, I will discuss one which Posner calls "go along" voting.
Let us turn to an hypothetical example, which will involve a three justice appellate court. We will concentrate on the behavior of judge C. Along with his colleagues, C has heard the case and read the briefs. For the purposes of this exercise, let us say C has made a private decision that the appeal is without merit and should be turned down. C, then, has gained the benefits of spectator. Now, let us assume in conference that A expresses a strong view that the appeal has merit and the case should be decided in the appellant's favor. B expresses mild opposition to A's view. C now recognizes that he may be in something of a bind. If he expresses his honest opinion, he may find himself writing an opinion for a majority composed of him and B. That will mean at least directing his clerks' writing, being prepared to respond to what may be well researched and clearly articulated views of A, and so forth. As a consequence, after hearing the preliminary opinions of the other two justices, C decides to "go along" with A. In that way, A will write the majority opinion and B may be forced to write a dissenting opinion. Recognizing the disutility to him, B may even say she is convinced by A to change her mind and make the decision unanimous. In any event, C will escape opinion-writing responsibilities and, thereby, enhance his leisure time. All of this results from what Posner says is the effort of judges and justices and everyone else to maximize their utilities.
Implications for International Law. The American experiment in constitutional democracy has gone further than most polities in insulating judges and justices presumably in an effort to have them make professional decisions irrespective of their personal interests. If, as Posner has suggested, this portion of the experiment was naively grounded and cannot achieve its objective, there are lessons not only for the United States but also internationally. On the basis of Posner's analysis, it is, for example, simply naive to think that a disinterested international judiciary with binding authority might be established. In addition, in spite of frequent criticisms from the "West," it is disingenuous to suggest that other so-called "developing" countries should establish an independent professional judiciary. Posner's analysis shows us that there is no such thing as a professional judiciary capable of going beyond its self-interest in the name of the law or justice.
Professional Ethics. In explicating his understanding of judicial behavior, Posner uses three analogies. I have already discussed two, the spectator and the voter analogy. The third is to managers of non-profit organizations. Since judges, like non-profit managers, do not work in a business environment, their compensation cannot be a function of corporate profitability. Thus, Posner indicates that, like non-profit managers, judges and justices look for non-monetary "perks" such as increased job security, more leisure opportunities, reduced attention to efficiency, etc. as a means of substitute compensation. What is striking about Posner's analogies is that none of them are to professions at least as that term is used to apply to fields such as accounting, architecture, engineering, law, medicine, nursing and even university professorships. This is not the place to enter into the contentious debate about what constitutes a profession, but in general, we might say that professionals are expected to be prepared to go beyond their self-interest in the name of the standards of the profession. Prior to Posner's analysis, we might have thought of the judiciary as an archetype profession. Conventionally speaking, we want judges to set aside their self-interest in order to render professional decisions. Posner says that does not happen. His analysis suggests that the entire professional enterprise is naively grounded. For example, we should not expect physicians and nurses to set aside their self-interest and attend to the interests of the patient; we should expect them to attempt to maximize their utilities whatever that might mean for the patient's health care.
Philosophy of Law. In introducing his approach, Posner says, "Instead of trying to explain directly why judges adopt one judicial philosophy or another, I shall concentrate on the antecedent question: Are judges rational?" Of course, Posner concludes they are at least insofar as rational is defined as maximization of utilities. Answering the "antecedent question" as he does brings into question philosophy of law itself. Once it is discovered that judicial decisions arise out of efforts to maximize personal utility, the philosophic discussion of them and the accompanying opinions would seem to be a rather empty exercise. We should not examine "judicial philosophy" but the specific utility functions of the judges. Posner's theory threatens to eliminate by reduction the philosophy of law. Another important analogy may be available to us in the case of business ethics. One of the reasons many philosophers have found "business ethics" to be so elusive is that once it is understood that, economically speaking, the goal of business is to maximize profits, philosophically there is not much more to be said.
A Lacuna. We should recall that Adam Smith put forward both a micro thesis and a macro thesis. The micro thesis, which Posner has extended, is that people act so as to maximize their utilities (happiness). The macro thesis is that such actions lead naturally to desired ends. In the case of business, they lead to general welfare. Posner may be right in regard to his micro thesis. As he says, we can only wait to see whether attempts to falsify the thesis are successful. However, Posner does not address himself to the macro thesis. What needs to be shown is that by the pursuit of the maximization of their happiness, judges and justices, whether knowingly or not, actually achieve justice.
There is a ready example for Posner in the law. In our adversarial system, lawyers, present as vigorous a case as they can on their client's behalf. On the micro level, the compensation conditions for lawyers insure they represent their clients' interests. On the macro level, it is then up to the courts to decide what is required by the law or by justice. Since we are still presumably interested in having courts achieve justice or, at the very least, a faithful interpretation of the law, Posner needs to show how the pursuit of judicial self-interest achieves those socially important objectives. There is some prima facie reason for skepticism since many of the "judge-invented" procedures addressed by Posner may lead them on occasion to vote in ways even they think are legally inappropriate in order to maximize their happiness. Since economists insist that utility functions are about falsifiable theories and not psychological accounts, the prima facie skepticism may be overcome, but it will take some effort to do so in the future if this program is to be successful.
(1) Richard A. Posner, "What Do Judges and Justices Maximize? (The Same Thing Everyone Else Does)", Supreme Court Economic Review, Volume 3 (1993), pp. 1-41. Judge Posner currently serves on the United States Court of Appeals for the Seventh Circuit. His name appears frequently on the "short lists" of nominees for the Supreme Court. He has been a leader of the "Law and Economics" approach. See, for example, Richard A. Posner and Francesco Parisi Law and Economics (Lyme, NH: Edward Elgar, Pub., 1997), Richard A. Posner, Economic Analysis of Law, 5th ed. (New York, NY: Aspen Law and Business, 1997), Richard A. Posner, The Federal Courts: Challenge and Reform (Cambridge, MA: Harvard University Press, 1996), Richard A. Posner, Economic Analysis of Law (Little Brown, 1992) and Richard A. Posner, The Problems of Jurisprudence (Harvard University Press, 1990), Richard A. Posner The Economics of Jurisprudence (Cambridge, MA: Harvard University Press, 1981).
(2) Posner, "What Do Judges and Justices Maximize?", pp. 4-5.
(3) Ibid, p. 7.
(4) I have not said the purpose was to arrive at an objective interpretation of the law as some platonic writings suggest. I have only said the conventional view holds that judges and justices should interpret the law as they disinterestedly understand it. Justice Kennedy's qualification of "as we see them" forsakes a notion of platonic objectivity.
(5) Ibid, p. 10.
(6) Qua academic, I would note the parallel to university professors and teaching, though the university achieves the outcome with distribution of reward and punishment devices not applicable to the Article III judges.
(7) Along with the use of stare decisis, Posner cites others such as "... the multitude of devices, most judge-invented, for ducking issues ... : the issue is moot or unripe, or calls for an advisory opinion, or presents a nonjusticable political question, or the party pressing it lacks standing, or the appeal was filed a day late, or the appellant had failed to exhaust some administrative or judicial remedy. These devices enable judges to reduce their workload, ..." Ibid, p. 21.
(8) Ibid, pp 2-3.