Slate is running a series of monthly dialogues between two of the nation’s most esteemed jurists, Richard A. Posner and Jed S. Rakoff. These conversations will be moderated by Joel Cohen, author of the book Blindfolds Off: Judges on How They Decide. The subject of their previous conversation was whether judges should use their roles to push for social change. This month’s conversation is about legal pragmatism and finding the “sensible” solution. (Note: Judge Posner unexpectedly resigned his seat on the 7th U.S. Circuit Court of Appeals earlier this month.)
Joel Cohen: Before you left the bench you said that, in deciding a case, you look for “the sensible solution.” That’s nice, of course. Once you’ve found that, “I ask whether it’s blocked by an authoritative precedent of the Supreme Court or by some other ukase that judges must obey. If it’s not blocked (usually it’s not—usually it can be got around by hook or by crook), I say fine—let’s go with the commonsense solution.”
Now whether you call that the school of “legal pragmatism” or something else without a doctrinal name, it seems to me somewhat ass-backward. It allows the judge, who has first decided how he would want the case to come out, to then search the law to see if he can finagle it to the result he wants.
You call it “pragmatism,” but it’s the “by hook or by crook” element of the process that would make many people—myself included—concerned. If I were a litigant or litigator appearing before you who had the law, but perhaps not the sympathy, on my side, I’d worry that a brilliant judge like yourself, but probably a not-so-brilliant judge as well, could find a way around the existing law.
Richard Posner: Joel, to be pragmatic just means to focus on consequences. What are the likely consequences of each of say two alternative rulings that are within the judge’s authority to make? You say I want “the judge, who has first decided how he would want the case to come out, to then search the law to see if he can finagle it to the result he wants.” That’s not well put; the “first” is ambiguous—you make it sound as if the judge decides the case before hearing it! And “finagle” is wrong; having found the pragmatic result, the judge asks whether it’s blocked by some authoritative ruling, principle, rule—whatever. There is no “finagling” involved in a search for answers to questions. As for “find[ing] a way around the existing law,” what is permissible is for the judge to brush away existing law that doesn’t actually govern the case at hand, though one of the parties might argue that it does.
So who were the great judges who were not pragmatists? Holmes was a pragmatist. Hand, Cardozo, Jackson, Friendly, Traynor, Kozinski, Wilkinson—I could keep going, but tell me who are the judges you admire who were/are not pragmatists? Any current member of the Supreme Court?
Cohen: Judge Rakoff, we have the Posner way of going about deciding a case as a legal pragmatist. Obviously, there are constraints upon you as a trial judge that might not exist for an appeals judge like Posner. That aside, do you look for a sensible solution to a case and then determine if the law allows it?
Jed Rakoff: As they preside over courts of first instance, federal district judges pride themselves on their pragmatism. There’s an old joke that illustrates this point. Three federal judges—a Supreme Court justice, a Court of Appeals judge, and a District Court judge—went hunting, with a permit that allowed them to shoot only ducks. A first flock of birds flew by. The Supreme Court justice raised his gun as if to shoot, but then put it down. “I’m not sure whether any of these birds qualifies as a duck under the original meaning of the Constitution,” he said. “I’ll need to consult the Federalist Papers before I can shoot.” Then a second flock of birds flew by. The Court of Appeals judge raised her gun, but then she, too, put it down. “While those look like ducks to me,” she said, “I don’t think I can shoot until I ask two other Circuit judges for their opinions.” Finally, a third flock of birds flew by. The District Court judge raised his gun and, bang, he shot and killed one of the birds. As he ran to retrieve the dead bird, he could be heard muttering to himself, “Sure hope it’s a duck!”
As this story illustrates, a district judge doesn’t have the luxury to treat every case and every issue with the total attention it might theoretically deserve. District judges’ busy dockets demand they get on with the job, and that often requires arriving at a tentative “common sense” solution to the underlying dispute presented by a case before they have had a chance to fully plumb every legal nicety. But there are two dangers in this approach that every district judge, in my experience, is aware of and tries to avoid. The first danger is to prejudge the case at or near the outset, by the judge’s saying to himself “Oh, yes, it’s one of those ‘X’ kind of cases that I’ve seen before.” A significant percentage of cases that seem at first blush to fit a familiar pattern prove, on reasonable inquiry, to be materially different from the familiar pattern, and a judge must therefore discipline himself not to jump to conclusions before he has heard enough of the evidence and arguments to know what the case is really about. The second, and somewhat related, danger is to fail to listen carefully to what the parties have to say. Unlike the “civil law” systems in Europe, our Anglo-American system of justice relies very heavily on the parties to bring the relevant facts and law to the judge’s attention, and so a judge who ignores what the parties present is a judge very likely to miss what the case is really about.
But having said all that, I think that there are more cases than not where there is something to be said for both sides, and where a wise judge will therefore try to fashion a result that may be different from what either party is suggesting. But where the judge is contemplating a novel result, he should, in my view, first tell the parties what he is thinking of doing, so that they can object if they wish and tell him, if they want, whether it goes outside what the law permits. By raising the proposed solution with the parties before it is final, the judge both gives the parties their due process right to be heard and also, if they consent, avoids further litigation. To give a familiar example, judges are often asked to issue, on a highly expedited basis, preliminary injunctions requiring a party to take certain actions or to refrain from taking certain actions, in order to prevent irreparable harm. But the judge, after hearing from the parties, may feel that the most practical solution is to order the party to take different actions from those requested. Such “creativity” by the judge should be encouraged, not discouraged, but it is imperative that he hear from the parties before making it final.
Posner: I’m not a judge any more—I retired on Sept. 2 because of disagreements with a number of the other judges. All I would add to what Judge Rakoff wrote is that over the years, beginning I think within a month or two after I started in as a judge in December 1981, I have conducted trials, both civil and criminal (though only two of the latter because our District Court has a shortage of criminal cases!) without feeling I was doing anything significantly different from what I did as an appellate judge. I voir dired the jury (most of my cases were jury cases), gave instructions (always my own instructions, never pattern instructions, because they’re legalistic), ruled on objections (if to documents, I ruled on all those before trial), allowed jurors to ask questions, and gave judgments (convictions in my two criminal cases, followed by a nominal sentence in one, because I didn’t think the government should have prosecuted the defendant). I think that’s about it. I enjoyed the trials but didn’t feel any strong discontinuity between trials and appeals.
Cohen: Judge Posner, of course the parties (and the public to the extent that it, or some subgroup, is particularly interested in the case or issue) should want a sensible outcome to the case. The problem I see with reaching that solution (after hearing the case), and then checking to see if the law blocks it is this: What may be sensible to the three of us might not be sensible to the judge(s) presiding over the case. His or her individually “sensible” solution, possibly influenced by what you label “priors”—one’s personal backgrounds and beliefs—may be abhorrent to us. You have been particularly strident in your writings about some sitting judges and even justices. Isn’t there a significant risk in giving some judges too much latitude to reach poor results by using the practice you used more ably?
Posner: But you haven’t offered any alternative, have you?
Cohen: This is the real problem I see. The greatest value of a body of law and the hallmark of the legal system is predictability. A litigant, on either side of the v, needs to be able to realistically appraise the potential outcome of a case. The traditional way judges have decided cases—with largely predictable outcomes—accords those litigants confidence in assessing how a case will turn out. I don’t have the alternative you ask of me. But aren’t you afraid of according judges with lesser degrees of “sensibility” the capacity to go off the rails when they can first choose what is “sensible” to them?
Posner: You say, “A litigant, on either side of the v, needs to be able to realistically appraise the potential outcome of a case. The traditional way judges have decided cases—with largely predictable outcomes—accords those litigants confidence in assessing how a case will turn out.” I don’t agree. If both parties to a case can realistically appraise the potential outcome, or the cases judges decide have largely predictable outcomes, there are no more judicial decisions, just settlements.
Cohen: Judge Rakoff, I understand your point about judging at the District Court level: Sometimes decisions need to be made quickly and pragmatically. Nazis are planning to march in Skokie; a president orders an immediate travel ban; a hurricane threatens to disrupt Election Day; a civil litigant wants a sitting president’s deposition. A practical solution must be reached right away. But most lawyers wouldn’t think that’s the typical situation facing an appeals judge—he often has more time to ponder the case. You have sat (by designation) on appeals panels, too. When you sit as an appeals judge, are you troubled if the trial-level judge’s “sensible” solution is not so sensible to you?
Rakoff: At the risk of being a bit pedantic (a robe that judges love to wear), much of the answer to your question, Joel, turns on what is called the “standard of review.” Many decisions of trial judges are subject to reversal on appeal only if they involve “clear error,” “abuse of discretion,” or other lenient standards that accord great leeway to trial judges (and juries) to choose among plausible alternatives. But some lower court decisions are subject to “de novo” review, which means that the appellate court decides the matter for itself, without any deference to the trial court’s decision. “De novo” review is largely reserved for “pure issues of law,” such as, for example, determining what the words of a statute mean. In a way, this is an institutional embodiment of the approach Judge Posner describes above as the way he personally approaches a case. The trial judge figures out a pragmatic solution of the dispute before her, and the appellate court reverses her only if some “authoritative ruling, principle, or rule” requires otherwise.
To my mind, this division of authority makes sense, and the result is that, when I sit as an appellate judge, I try hard not to “second guess” the trial judge as to what is “sensible,” as long as the result is neither lawless nor patently unreasonable. In this respect, I may be a little more forgiving of trial judges’ idiosyncrasies than Judge Posner has been. But it is worth noting that the legal systems of many nations accord appellate courts much greater authority to overrule a trial court’s factual findings and discretionary rulings than does the U.S. (and, more generally, the “Anglo-American”) system. Ironically, this may make these other legal systems less “predictable” than the U.S. system, in the sense that, in the U.S. system, a trial judge’s final decision is, more than 9 times out of 10, the final decision, whereas in many other systems it is just the start of the proceedings.
I wouldn’t want to conclude without expressing my personal regret that Judge Posner is retiring from the judiciary, as it will be a tremendous loss to the reasoned development of the law from within. Of course, I suspect he will now start effectuating the development of the law from without!