U.S. Court of Appeals Judge Richard Posner knows a thing or two about the law.
In 1981, President Ronald Reagan appointed him to his current post on the 7th Circuit, the federal appeals court in Illinois. A graduate of Yale University and Harvard Law, Judge Posner is one of the most influential judges to ever sit on the bench, and the most cited living judge.
Posner, unafraid of confronting controversial topics, including inadequacies within the legal profession, agreed to talk about a variety of topics related to legal writing, legal thinking, and law school.
What type of legal writing should law students embrace?
I like to say that law is made by simple people, for simple people. So, the endeavor should be to make a judicial opinion as simple as possible, as nontechnical, and accessible to laypeople.
The benefits are not just to the laity, because very few people who aren’t lawyers read judicial opinions. But the lawyers themselves and the judges, they tend to get tangled in technicalities, and repetition. It is very unhealthy and confuses everybody.
Are you a judge who happens to be an academic or an academic who happens to be a judge?
I was a full time academic for 12 years until I was appointed to the judgeship. And since then I teach, a little bit, at the University of Chicago Law School. But I do not consider myself an academic. One of the things I teach is judicial opinion writing. A lot of the students at the University of Chicago become law clerks. Most judges delegate at least the first draft of judicial opinion writing to the law clerks. I like to encourage them that writing a judicial opinion can be a nontechnical kind of activity, and everyone benefits from that.
What advice do you have for law students who want to become better writers, but are not being offered that opportunity in classrooms?
The way people learn to write well is by reading well-written things like George Orwell, for example. He’s a modern writer. He’s very clear, very impressive, articulate, fresh, humorous, and nontechnical. That is what people should be doing to improve their writing. They should be reading literature. My mother was an English teacher in the New York public schools. She force-fed me literature since I was three years old. I majored in English in college.
If I were teaching first-year students in their mandatory writing course I would show them examples of good judicial writers such as Holmes, Learned Hand, and Robert Jackson. I would want them to read their work, and then try to write an opinion that would have the clarity and specificity of these famous judges. I do not know what more can be done.
Do you encounter misuses of terms of art, or legalese where it is not necessary?
I think legalese is very rarely necessary. For example, suppose you are convicted of a crime and sentenced. Now you want to bring a Habeas Corpus action saying there were serious mistakes made in your trial and you want a new one. Often the attorneys filing the Habeas action appeal to the notion of actual innocence, they say, ‘my client is actually innocent.’ Now actual innocence is a very bad term because it implies that there is a kind of innocence that is not actual. You are either innocent or guilty. You cannot be innocent, but not actually innocent. Nevertheless, ‘actual innocence’ is a very standard, very common, piece of legal jargon. And the lawyers cannot get away from that. The Supreme Court uses the term. It’s quite nonsensical.
It started with an article by Henry Friendly many, many years ago, in which he said that in deciding whether there had been procedural irregularities that would justify Habeas Corpus, you ought to really consider the issue of innocence. If a person is innocent you don’t have to fuss so much about procedure. So anyway, the Supreme Court picked that up but in a curious way. And the first way, they said, we think a person should be entitled to Habeas Corpus if the he can prove factual innocence. And a few years later they dropped the “f,” and started talking about actual innocence. I don’t think there was any mental activity in deciding to use actual innocence. That happens, and once you have a piece of jargon that has been used frequently, it then has a life of its own. That is just a very serious problem.
Does the way we are taught the law, looking backwards, affect the quality of legal writing that students put out?
The students come into law school and most of them have no idea about law, the legal profession, or anything like that. And they just absorb whatever they are given by the professors.
Now, why are the professors so wedded to a very old fashioned way of teaching, and with very heavy emphasis on the past? I remember the first case when I was a law student. It was a 14th or 15th century English case about assault. It was an interesting case. There had never been a concept of assault before, just battery. So that’s where we started, with the 14th or 15th century. It sort of set the tone that everything we studied would be backward oriented.
And so the students imbibe that and learn a lot of rules that are very old, and that becomes their culture.
How much does the Bluebook Manual of Citations, and formalistic citations, matter in the real world? Do you think they serve a practical purpose?
No, I think it’s zero.
I tell my law clerks not to look at the Bluebook, ever. I have a little handbook for my law clerks. So the Bluebook is 580 something pages. I have five pages on formatting. You know how you cite the case, how you write a case down. That’s perfectly adequate.
The important thing about citations is that it enables the reader to find the case or the article or whatever is cited; that’s the important thing. Not whether it conforms to some elaborate ritual of citation practice. So I regard the Bluebook really as a monstrosity. It’s also quite expensive.
Another thing I’d like to do is abolish the casebook.
My proposition is forget the casebook and give the students a list that you want them to read. I’m not sure but in the law schools I know, the student has free access to these cases and can read them online. One of the benefits of reading them online is that it's unedited full text, and Westlaw allows you to click on the briefs. One of the things I’d give them is a list of questions. I think some of these casebooks are fine but these massive casebooks that have enormous volumes of stuff must be very laborious for the students. I don’t really understand that mentality. I just don’t know why they would want to impose that on the students or the law clerk.
It's so striking about the legal profession, it goes back at least to the Roman Empire, but the Greeks didn’t have lawyers but they did have trials. So, it goes back thousands of years and it's not like science that keeps changing and once something gets established, even something as stupid as not using an italicized period in legal writing, everyone flocks like lemmings. Scientists are always looking ahead, and want to improve science and discover new things. But lawyers, including law professors and judges, they are always looking backwards.
Does creative writing have a place in legal briefs?
I think most judges would like that, actually, because I don’t think the judges like reading long, conventional, dull briefs. I think they could use a little entertainment. We like pictures and brevity but the judicial system does impose a word limit on briefs. I think it’s like 14,000 words, but the lawyers can always ask for more space but generally they adhere to that limit. So, the judges appreciate limitations. I had a case recently where the table of cases was so long that I counted them; it turned out there were 72 cases cited. That was just preposterous. How could the lawyer think the judges were going to read 72 cases?
I think Judges would value simplicity. The Supreme Court and Congress have created complicated sub rules for constitutional law and statutory law. The Supreme Court never seems to consider the difficulties that they are throwing in the path of the lawyers and the lower court judges through their technicalities.
For law students who want to become a part of the judicial process, how do you suggest they become involved?
Clinical programs are very valuable. They handle real cases, pro bono, and that is very good training for someone who wants to actually be in litigation.
What do you assume that other judges look for in hiring?
I think they are just looking for very good law school performance, and enthusiastic but also credible recommendations from faculty whom they trust. One thing to note is that all the courts have what are called staff attorneys. The head of the staff attorneys, an employee of the court, a lawyer, hires these. Some of the staff attorneys do very well and get very good jobs in law firms or the government. That is something to consider along with traditional clerking.
This interview has been edited and condensed.
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