It is impossible to have more fun than to spend a
little time in the holidays reading Richard A Posner, Divergent Paths: The Academy and the Judiciary (Harvard University
Press, Cambridge Mass., and London, 2016). Here is a snippet (p 13):
“Law schools will do almost
anything to boost their ranking in U.S.
News & World Report, which treats faculty-student ratio and number of
library books as plus factors in the ranking, though they have little (library
books virtually nothing) to do with the quality of legal education.”
And on the topic of judicial embrace of multifactor
tests as aids to judicial decision making, which Judge Posner calls a common
pretense of analytical rigour in adjudication, (p 117):
“Not only is the list of
factors usually open-ended and therefore incomplete, but the factors are rarely
given weights, and so unless all line up on one side of the dispute no decision
can be derived from them; they are window dressing.”
And as a federal appellate judge, Posner has this to
say about judicial disagreements (p 235):
“The problem of feuding
federal judges would be solved in a trice if the Chief Justice summoned them to
his office in Washington and told them to stop behaving like children.”
Well, I’m not trying to summarise what Posner says in
this endlessly interesting book. We who are not Americans can easily see its
relevance to our own legal environment.
Posner, who, to put it mildly, is one of the more intelligent
judges, embraces Bayesian reasoning with conditional probabilities. A small
glitch – surprising and ironic - occurs on pp 338-339 (if my Kindle's pagination is correct) in his illustration of
why lawyers need to be able to understand DNA evidence. But never mind.
I have, over the years of writing this blog, referred
to Posner on several occasions. His fearless brilliance is an inspiration for
jurists, and his enthusiasm brings both joy and outrage. And laughter.
