Vol. 5 No. 11 (November, 1995) pp. 270-272

OVERCOMING LAW by Richard A. Posner. Cambridge, Massachusetts: Harvard University Press, 1995. 607 pp.

Reviewed by Mark A. Graber, Department of Government and Politics, University of Maryland, College Park.

OVERCOMING LAW takes the reader on a dazzling intellectual tour. Judge Richard Posner offers fascinating commentary on subjects ranging from the law of medieval Iceland to the legal community of the contemporary South Bronx. His interests range from the organization of legal services to the economics of homosexuality. Moreover, Posner is an exceptionally accessible and civil guide to this remarkable range of legal concerns. Although readers of some chapters, particularly those discussing lesser known law review articles and debates within the economics community, may feel that "you had to be there," most intelligent readers will easily understand and enjoy most of Posner's prose. Few books of more than five hundred pages read as easily as OVERCOMING LAW. Proponents of the multicultural left may be irritated by Posner's occasional PC-tweaking, but his writing consistently takes a respectful tone towards those with whom he strongly disagrees. Unlike many academic lawyers, Posner treats scholars he criticizes as holding mistaken intellectual views rather than persons guilty of more venal sins.

Most of the chapters in OVERCOMING LAW reprint many of Posner's previous articles, but a common theme animates the whole. Posner is dedicated "to nudg[ing] the judicial game a little closer to the science game" (8), a game he maintains is played by pragmatic empirical investigation of social reality rather than by abstract manipulation of formal conceptions. He is particularly disturbed by the "methods of analytic philosophy" that are used in "conventional legal reasoning" and "the weak sense of fact that is so marked a characteristic of legal scholarship in general" (172). What legal scholarship needs to be "an effective instrument for understanding and improving the law," Posner argues, is "a taste for fact, a respect for social science, an eclectic curiosity, a desire to be practical, a belief in individualism, and an openness to new perspectives," characteristics associated with "pragmatism," "economics," and "liberalism" (viii).

Most of OVERCOMING LAW is devoted to documenting the empirical failings of virtually all forms of legal scholarship. In chapter after chapter, Posner points out how numerous legal scholars are guilty of failing to treat the empirical components of their subject seriously. Both conservative and liberal legal scholars, in his view, too often fail to discuss or discuss adequately the actual costs and benefits of their proposed legal rules and practices. These critiques are by and large interesting, thought provoking and sometimes surprising. Thus, while Posner not surprisingly questions the empirical underpinnings of many legal calls for increased state regulation, he also asserts that a jurisprudence of original intention to be inadequate because that "theory of constitutional interpretation . . . ignores consequences" (245). Indeed, Posner even suggests that some law schools should establish "racial quotas for its faculty" so as to provide an empirical test of whether such policies "raise the quality of legal scholarship" in ways that critical legal scholars maintain (108).

Still, if OVERCOMING LAW was going to critique virtually every piece of contemporary legal writing, Posner should have devoted a chapter to OVERCOMING LAW, a work that exhibits virtually every failing that OVERCOMING LAW identifies in other authors. Consider Posner's trenchant critique of an implicit premise of much legal scholarship, "that constitutional law should be considered a single specialty, so that a John Ely is presumed to be able to speak knowledgeably about the social treatment of aliens and of illegitimate children" (207). There is much to this claim. Indeed, Ely (1991, 838) himself has commented on the willingness of law professors to pose as "an expert on any subject on which [they] took two or more courses in college." Still, Posner's criticism of Ely as claiming more authority than any scholar seems bizarre given Posner's implicit claim that he has Harvard University Press publishable comments on subjects ranging from the poetry of Wallace Stevens to the comparative sexual strategies of male and female homosexuals!

Virtually every chapter in OVERCOMING LAW contains at least one pseudo-empirical claim of the sort OVERCOMING LAW rightfully condemns in other works. For example, without citing any evidence Posner suggests that "the Socratic method is endangered in part because . . . minority students less qualified on average than the law school's nonminority students [are] more likely to be embarrassed by the `cold call' method of Socratic teaching" (82). One wonders whether some critical race theorist believes that law schools are abandoning the Socratic method (if they are) precisely because minority students are more verbally adept than nonminority students so written tests better maintain white supremacy. Both claims seem intellectually irresponsible in the absence of any empirical study, but if Posner claims a license to make the former claim, he is in a poor position to criticize those theorists who make claims similar to the latter.

Indeed, Posner is not above making the formalist claims he associates with the worst forms of legal reasoning. When criticizing Drucilla Cornell's attack on employment at will, Posner asserts that "another objection to entitling a person to demand a reason for being fired is that it logically entails giving the employer the right to demand of the employee a reason for quitting" (306). This principle of entailment can be found in no logical or mathematical treatise. Nor is it historically true. As Professor Karen Orren (1991) demonstrates, employers have frequently enjoyed rights that have been denied their employees. Most significantly, a pragmatist would want to know something of economic conditions before deciding whether to adopt Posner's principle of rights transitivity. Perhaps employers enjoy some other right that employees lack. Perhaps employers have a significant power advantage that justifies giving employees special rights. Only when we investigate the actual balance of power between employees and employers can we determine whether, if we give employees the right to demand a reason for being fired, we should give employees the right to demand a reason for leaving employment.

Finally, some passages in OVERCOMING LAW suggest that Posner may not fully understand the economic models he claims are central for pragmatic analysis. Consider his claim that "a theory of human sexuality that stresses male power and violence is a rival hypothesis to the economic one" (355) Yet, "if economics imagines the individual . . . as one who bases decisions . . . on the costs to be incurred and the benefits to be reaped from alternative courses of action that remain open," (16), then the radical feminist claim that women are subversive to avoid male violence is not a "rival hypothesis to the economic one," but a rival economic hypothesis. Indeed, once one recognizes, as Posner cheerfully does, that there can be nonpecuniary costs and benefits, then economics standing alone cannot yield any hypotheses because the anything can be a cost or benefit (consider my promise/threat to place a chocolate sundae in front of you). Thus, pragmatists cannot predict, as Posner attempts to do (537-38), the consequences of the actual malice rule on newspaper publishing until they empirically identify what ends the paper is seeking and what resources that paper has (as well as the ends and resources of other relevant actors).

That more space in this review has been devoted to critique than compliment should not be understood as indicating in anyway that OVERCOMING LAW is an unimportant, deeply flawed book. Rather, as noted earlier, the work is both a terrific read and a major contribution to legal scholarship. Posner might benefit, however, by recognizing that many of the problems he finds in the work of others also infect his scholarship. Perhaps he might come to the conclusion that there is something valuable in having very intelligent persons speculate on the consequences of legal rules, even if those speculations are not based on a full scientific study. Given that no reader is likely to explore in detail all the subjects Posner considers, OVERCOMING LAW is an excellent economical introduction to how a pragmatic approach might improve our lives and laws.

References:

Ely, John Hart. 1991. "Another Such Victory: Constitutional Theory and Practice in a World Where Courts are no Different from Legislatures." VIRGINIA LAW REVIEW 77:833-79

Orren, Karen, 1991. BELATED FEUDALISM: LABOR, THE LAW, AND LIBERAL DEVELOPMENT IN THE UNITED STATES. Cambridge: Cambridge University Press.


Copyright 1995