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Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Tuesday, September 15, 2015

Posner: Divergent Paths — The Academy And The Judiciary

PosnerRichard A. Posner (Judge, U.S. Court of Appeals for the Seventh Circuit; Senior Lecturer in Law, University of Chicago Law School), Divergent Paths: The Academy and the Judiciary (forthcoming Harvard University Press, 2016):

Judges and legal scholars talk past one another, if they have any conversation at all. Academics couch their criticisms of judicial decisions in theoretical terms, which leads many judges―at the risk of intellectual stagnation―to dismiss most academic discourse as opaque and divorced from reality. In Divergent Paths, Richard Posner turns his attention to this widening gap within the legal profession, reflecting on its causes and consequences and asking what can be done to close or at least narrow it.

The shortcomings of academic legal analysis are real, but they cannot disguise the fact that the modern judiciary has several serious deficiencies that academic research and teaching could help to solve or alleviate. In U.S. federal courts, which is the focus of Posner’s analysis of the judicial path, judges confront ever more difficult cases, many involving complex and arcane scientific and technological distinctions, yet continue to be wedded to legal traditions sometimes centuries old. Posner asks how legal education can be made less theory-driven and more compatible with the present and future demands of judging and lawyering.

Law schools, he points out, have great potential to promote much-needed improvements in the judiciary, but doing so will require significant changes in curriculum, hiring policy, and methods of educating future judges. If law schools start to focus more on practical problems facing the American legal system rather than on debating its theoretical failures, the gulf separating the academy and the judiciary will narrow.

Wall Street Journal Law Blog, Eight Provocative Passages from Judge Richard Posner’s New Book:

The increase in the number of law schools has caused a reduction in the average quality of law school graduates and a concomitant reduction in the average quality of lawyers who practice in the federal courts. And the increased size of laws school faculties has resulted in an increased number of the faculty members whom I’ve term “refugees” from more competitive or less lucrative fields and who have little interest in the actual judicial process and little ability to contribute to that process.

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Comments

"The increase in the number of law schools has caused a reduction in the average quality of law school graduates and a concomitant reduction in the average quality of lawyers who practice in the federal courts. And the increased size of laws school faculties has resulted in an increased number of the faculty members whom I’ve term 'refugees' from more competitive or less lucrative fields and who have little interest in the actual judicial process and little ability to contribute to that process."

What an amazing and accurate quote! My only problem with it is that the reduction in quality of the fed court bar really shouldn't have materialized yet, since the decline in admissions standards began around 2011. If Posner has detected a decline in ability I would chalk it up to the decline in the way Americans teach writing that started somewhere in the 70's when the Boomers got their hooks in the education system. His comments on law school faculty are perfect through.

Posted by: JM | Sep 15, 2015 1:48:20 PM

The problem with this is it assumes the purpose of law schools is to "service" the judiciary and the profession. Is that really true? The best work in academia is often that which blazes new paths, not incrementally changes current practice.

Posted by: mike livingston | Sep 16, 2015 4:10:53 AM

That's a tricky one, Mike - is the purpose of law school to train new lawyers to enter the legal profession or to provide sinecures for law professors? Hmmm....

Posted by: Unemployed Northeastern | Sep 16, 2015 8:56:57 AM