Divergent Paths: The Academy and the Judiciary

by Richard A. Posner

Overview

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.

Product Details

ISBN-13:	9780674286030
Publisher:	Harvard University Press
Publication date:	01/04/2016
Pages:	432
Product dimensions:	5.70(w) x 8.40(h) x 1.40(d)

About the Author

Richard A. Posner retired as a judge of the United States Court of Appeals for the Seventh Circuit in 2017. He was previously a senior lecturer at the University of Chicago Law School.

Table of Contents

Preface ix

Introduction: A Troubled Relationship 1

Appendix A Then and Now-the Academy's Changing Face 51

I Problems of the Modern Federal Judiciary

1 Structural Deformations 59

2 Process Deficiencies 74

Appendix B Incurious Adjudication, A Case Study 192

Appendix C The Tragedy of Supervised Release 197

3 Management Deficiencies 222

II The Academy to the Rescue?

4 The Contribution of Scholarship 261

5 The Law School Curriculum 297

6 Continuing judicial Education 345

Appendix D List of judiciary's Problems and Possible Academic Solutions 361

Conclusion 369

Epilogue 387

Index 407

Editorial Reviews

The book has two parts. The first, and longer, identifies problems facing the modern federal judiciary; the second offers suggestions for how law schools might alleviate them. Both display Posner's characteristic clearheaded insights. Divergent Paths is a valuable contribution to debates over the future of federal courts and law schools alike…Posner is, as always, uniformly sensible and frequently brilliant. With such a long list of problems and solutions, everyone will find something with which to disagree. But every reader should find something to agree with as well, and on some points there should be consensus.

The New York Times Book Review - Kermit Roosevelt

11/16/2015
Federal appellate judge Posner (Reflections on Judging) analyzes problems in the federal judiciary and ponders how a shift in the focus of law-schools could address them. The prolific and outspoken jurist pulls back the curtain on how his colleagues behave, noting the extent to which outcomes can be dictated by what he dubs judges’ priors: “the impulses, dispositions, attitudes, beliefs, and so on that they bring to a case.” Posner recites a litany of ways in which federal appellate judges fall short, including a reliance on inexperienced law clerks to draft opinions and various barriers to obtaining the “sophisticated scientific, technical, and financial information” they need to reach the right result. He believes that a different approach by law schools might make a difference, with academics producing scholarship that would be more useful to judges and schools improving judicial education. Given his equally harsh assessment of the state of the academy, which he believes is now dominated by interdisciplinary approaches at the expense of tradition, readers may have a hard time feeling optimistic about reforms. Posner’s insights would be more useful had he followed some of his own advice and used plain language, and his points could have been made more efficiently. (Jan.)

Publishers Weekly

Divergent Paths should certainly be of considerable interest to anyone interested in public policy and academic issues. And anyone interested in the American legal system, at any and all its levels (but especially that of the federal courts), should find themselves very entertained and hopefully helpfully provoked by Posner’s book.

Complete Review - M. A. Orthofer

Divergent Paths is a valuable contribution to debates over the future of federal courts and law schools alike…Posner is, as always, uniformly sensible and frequently brilliant.

Kermit Roosevelt

The great strength of Divergent Paths—and the principal reason it should command the attention of readers—is Posner’s candid, compelling and accessible assault on legal formalism (and its kissing cousins, originalism, textualism, literalism, and canons of construction), the dominant method used by federal judges.

Huffington Post - Glenn C. Altschuler

[Posner’s] caustic wit and brutal candidness are on fine display in [his] latest book, a trenchant dissection of both the academy and the judiciary’s flaws…Equal parts edifying and entertaining, Divergent Paths is surely the funniest book you will ever read by a sitting federal judge.

Slate - Mark Joseph Stern