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