Chillin'Competition

The mighty Richard Posner is featured in the Harvard Magazine. If you have some time, you will find it interesting. I guess many readers will agree with his views on legal pragmatism, which he considers to be the only viable approach to judging and, more generally, his scepticism vis-à-vis grand theories. I have the impression, through my exchanges with lawyers and officials, that this is the approach that comes more naturally to those exposed to the realities and constraints of daily decision-making.

I have to say that I kept reading the feature because it announced the release of a new book by Posner, Divergent Paths. A few years ago, he published How Judges Think. There is a chapter in this book, ‘Judges Are Not Law Professors’, that I have read a few times already.

That chapter is a good reminder of what meaningful legal scholarship is. But what it does, first and foremost, is to describe the growing gulf between legal academics and the legal profession in the US. It may be the case that some law professors in the US are towering intellectual figures, but what they say, Posner explains, matters little to judges, officials, and practicing lawyers.

Interestingly, the rise of interdisciplinary research – which Posner championed in the 1970s – explains in part the growing irrelevance of legal academics in the US. Too much ‘Law and…’ and little traditional, black-letter research that sheds light on what the law is and how it evolves. I understand that Divergent Paths expands the topic and I look forward to reading what he has to say.

Other than that, here are a few gems:

• ‘I have to say at the risk of blasphemy that I found the Supreme Court an unimpressive institution’ (about his time as a clerk there).
• ‘I hate the moral philosophy stuff. It is theology without God’ and ‘I don’t like theology with God, I don’t like theology without God. It’s preachy, it’s solemn, it’s dull. It’s not my cup of tea at all’.
• ‘One 2014 case, for example, dealt with whether workers at a poultry-processing plant should be paid for the time it took them to remove and put on protective gear at the start and end of their 30-minute lunch break. The workers said it took 10 to 15 minutes; the company said two to three. Posner bought the gear and videotaped and timed his law clerks putting it on (95 seconds) and taking it off (15 seconds), for a total of less than two minutes’.