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Bar News - June 15, 2016

Book Review: Judge’s Latest Book Issues Challenge to Judiciary and Legal Scholars


Divergent Paths: The Academy and the Judiciary
By Richard A. Posner
Harvard University Press (2016)
Hardcover, 432 pages

If you are a judge, state or federal, or a law professor, you should read Judge Richard Posner’s new book, Divergent Paths: The Academy and the Judiciary. Additionally, if you practice frequently in court, especially federal court, you should read this book. If you are an Atticus Finch, or toiling away in a firm or company, focused on a narrow area of the law, then I commend the book to you, if you have the time, but it probably will not help you be a better Atticus Finch or specialized toiler.

A federal judge who sits on the US Court of Appeals for the Seventh Circuit, Posner is an opinionated man, a prolific writer and not shy about sharing his opinions or his writings. According to his Wikipedia page, he is the author of “nearly 40 books.” I am sure a Lexis search would yield many more articles as well. He also teaches at the University of Chicago Law School. His background and experience make him uniquely qualified to make the criticisms that he proffers in his latest work.

In Divergent Paths, Posner takes to task the judiciary, with a focus on the federal judiciary – though he posits that the state judiciary suffers the same ills – and law schools, or “the academy.” I fear he will make no friends on the bench or among law professors; in fact, he may very well lose some.

The book is divided into two parts. Part 1 is “Problems of the Modern Federal Judiciary,” and he outlines many. Posner takes a hatchet to the judiciary, spending 200 pages detailing 17 specific shortcomings, including legal formalism, interpretational naiveté, passivity, lack of curiosity, and a loose attitude towards the truth as just a small sample.

Part 2 is “The Academy to the Rescue?” Spoiler alert: He says no. He offers up some suggested reforms to law schools. My favorite is eliminating textbooks. Simply give a list of cases to be studied over the semester, and let the students read and download them from Westlaw. Brilliant! The students get free access to Westlaw and will have access to other resources to give them more context on the cases. I wish my professors had thought of that.

Posner writes that the goal of his latest book is to “…identify the areas in which federal judicial performance is deficient, and explain what the law schools can do to remedy or more realistically to ameliorate, these deficiencies.” He does both with a vengeance.

The title “Divergent Paths” refers to his opinion that the judiciary and the academy are drifting apart. He attributes this to the evolution of legal scholarship, away from the practicalities of judging. Law school professors must “publish or perish,” as other scholars must, but the nature of their writings have changed. They write less and less for practitioners and more and more for other legal scholars. Why, you ask – because that’s who reads law reviews today. Who among us in the day-to-day practice of law has the time to read a law review article?

Posner’s goal is to describe some shortcomings of two institutions that he has served for many years and suggest some reforms in one that may help reform the other. Whether his suggestions, even if taken whole, can change the course of these two supertanker-sized organizations only time will tell.

Eric Cook

Eric Cook is an attorney who lives in Portsmouth and has practiced in New Hampshire since 1998.

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