THE BLOG
11/04/2013 09:42 am ET Updated Jan 23, 2014

Richard Posner tackles complexity

Has a nation ever been more tightly connected, more endlessly chatty, and more generally baffled? We bathe in verbiage - oral and written, emailed, blogged, tweeted, chanted -- much of which we ignore, some of which we misunderstand, a bit of which we twist into meanings that align with our darkest impulses. It is a truism of the age, one that may even be true, that in the face of mounting complexity communication, such as it is, occurs in smaller and more fragile bundles. Only students, and fewer of them, take the time (have the time) to plow through "Paradise Lost" or "The Wasteland," not to say the superstructure of interpretation rising from long, difficult, very old works. And, except for those heading into academia, those pursuits are viewed as anachronisms, not terribly useful for minting a shiny career. Meanwhile, complexity rises. Who can really master debates over global warming, evolution, macroeconomics or fracking? No one truly understands the global financial system, why crime rises and falls, the dynamics of education reform. The more we yammer, the more opinion - analysis, judgment, interpretation - gets battled back and forth, often backed by spurious math and claims of expertise. Facts blow about like leaves. Are facts even facts? You rake them into tiny piles, only to have them scatter in the wind.

Complexity is Richard Posner's big subject. Posner, a longtime, occasionally controversial, federal appeals judge, is a man of broad interests: He has written books on everything from legal and judicial issues to the financial crisis to catastrophes to public intellectuals. He was a pioneer of law and economics, though the events of 2008 shook his confidence in doctrinaire market solutions; he has long viewed himself, with good reason, as a pragmatist. And now he has produced "Reflections on Judging," which takes a number of his longtime themes and preoccupations - even his championing of Oliver Wendall Holmes -- and hammers them into a broader argument. As he admits, much of this book comes from earlier articles, such as his attack on the Bluebooks, which provide uniform citation of cases in legal briefs and law articles. About halfway through, he launches an extended criticism of Supreme Court Justice Antonin Scalia and Bryan Garner, not only for their advocacy of Constitutional orginalism but for their attempt, in "Reading Law," to "formalize" that school of interpretation in various "canons of construction." To be fair, he also attacks Harvard Law School's Akhil Amar, for his liberal argument that there are really no constricting rules on constitutional interpretation. The two approaches begin to look the same, each constructing a kind of "imaginary constitution."

Posner's target here is what he calls formalism, the attempt to cope with increasingly complex social, legal and technical realities through a set of rules and procedures. He focuses throughout on judges, particularly the challenges of appellate judges (he includes a short memoir of how he got to be a judge, what he has learned on the job, plus advice for judges, lawyers and law clerks), but he has larger aims. He lays out a clash of two schools: realism and formalism. Formalist judges "want to use a complex style of legal analysis...to resolve cases without having to understand factual complexities." Often judges don't even realize they are formalists. Realist judges, of which Posner considers himself one, "want to impose a simple style of legal analysis on a sure understanding of the scientific or commercial complexities, factual rather than legal, out of which cases arise. The realist thinks that law is or can be made simple but that the subject matter of many legal cases is irreducibly complex."

Posner focuses on a judge's product: opinions. He argues that formalism has created a kind of "internal complexity" -- that's opposed to the "external complexity" of the outside world - which spawns confusion and misjudgments. He blames, among other things, the trend toward law clerks doing more and more opinion writing, while judges edit. In its place, he urges a return to judges penning their own opinions, using clerks for research and feedback, and adopting the straightforward style of some of his favorite judges: Louis Brandeis, Henry Friendly, Holmes. (He admits he's one of the few appeals judges still writing his own opinions.) He denies that legal prose has to be obscure, jargon-ridden or painfully long. (At one point, he rewrites an appellate opinion - he takes few prisoners - and it's a revelation.) He insists that clarity of writing will produce clarity of thought. All this to a non-lawyer, and a fellow English major, is appealing. He is saying: writing matters, not just to communicate but to think clearly in the first place.

Moreover, his critique of formalism rings true well beyond the legal world. What field or profession hasn't been swamped by the kudzu of its own jargon? What endeavor hasn't, like a Weberian bureaucracy, grown ever-enlarging rings of complexity around itself? There's military-speak, healthcare lingo, business-school patter and the fog-bound rhetorical fortresses of academic disciplines from literary criticism to philosophy to art. Invariably this formalism is accompanied by theory. Economists have taken refuge in a mathematics that repels non-economists. And economics has a zeal for model building that may be useful in thinking through scenarios, but that, like canons of construction, can crowd out real thought and thorny realities. Markets are efficient. Investors have rational expectations. We can know all future probabilities. (The Bank of England's financial stability head Andrew Haldane gave a marvelous speech last year in which he echoed Posner: complex environments shot through with uncertainty often more apprehensible through simple rules - so-called heuristics - than complex models. Haldane credited economist Herbert Simon for the notion.) That said, some economists actually write well. John Maynard Keynes is the great exemplar - the economists' Holmes; so does the Financial Times' Martin Wolf and John Kay, Haldane and Paul Krugman, whether you agree with him or not. Posner does not, however, deal with a more traditional complaint about good writing, first articulated by the ancient Greeks: Its ability to persuade; its potential for sophistry and demagoguery.

Posner's critique cuts deeply to matters of education and democratic discourse. In a way, he is saying: The world is complex, and growing more so, particularly as technology advances. But we need not make that complexity an even greater barrier to understanding - and judging -- than it already is. We need to confront complexity and what it means; we need to struggle against it, knowing full well we won't always succeed. And the best way to do that is to tackle those challenging problems (he recently waded into patent law, for instance), then think and write clearly about it. Posner is hardly a Luddite: He urges judges and clerks to use the Internet; and he's been an active blogger. But he understands the distinction between technology as a tool, and technology as a kind of imperial fiefdom intent on self-preservation and hegemony. "Reflections on Judging" is a plea to understand those distinctions, and to directly engage in the eternal effort to understand.