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Judge Richard A. Posner explores the fundamentals of justice


"Frontiers of Legal Theory," by Richard A. Posner. Harvard University Press. 453 pages. $35.

A trial judge in Baltimore City is apt to compare her task to that of a front-line soldier. An unending flow of cases - criminal, juvenile, domestic and civil - forces focus on the immediate. I read Judge Richard Posner's latest book, "Frontiers of Legal Theory," with hesitation and skepticism. What relevance could theoretical postulates have for the practitioner caught up in the daily fray?

The focus of traditional legal education has aimed at teaching the student how to be an effective lawyer. In recent years, law schools have given even more attention to litigation and negotiation skills. Posner observes that such an education can form a highly skilled professional who can "work" the system, but "it cannot supply the tools essential for understanding and improving the system, because it cannot cultivate the requisite external perspective." His book provides an "external analysis" of the law and immerses the reader in an incredible discourse of the application of economics, history, psychology and epistemology to a variety of legal subjects.

Its purpose is to make legal theory "more accessible and useful to practitioners, students, judges, and the interdisciplinarians themselves."

The extraordinary Richard Posner has written 30 books and more than 300 articles and book reviews. By far, he is the most prolific legal writer in America, yet since 1981 he has sat on the United States Court of Appeals for the Seventh Circuit, where he was chief judge from 1993 to 2000. Most recently, he was mediator for the Microsoft case. His judicial opinions are models of scholarship, clarity and wisdom. In a perfect world, every complicated case in America would be assigned to him for resolution.

Posner's name is inextricably entwined with the law and economic movements, and the economic approach plays an essential role in this book. Posner states that most economic analysis consists of tracing the consequences of rational behavior - what Posner calls "the science of the consequences of human behavior." The initial chapters apply an economic outlook to surrogate baby contracts, free speech and election finance reform.

The second section of the book begins with the observation that law is the most historically oriented and "the most backward looking" of the professions. Posner writes that the law venerates "tradition, precedent, pedigree, ritual, custom, ancient practices, ancient text, archaic terminology, maturity, wisdom, seniority, gerontocracy and interpretation."

But, he insists, in actual practice, "The legal profession's use of history is a disguise that allows the profession to innovate without breaching judicial etiquette. ... Yet the truth is that, for the most part, these past settlement of disputes frame and limit, but do not dictate, the outcome of today's cases."

One might assume that, as a proponent of the economic theory, Posner would not be able to examine with felicity the emotionality of acts regulated by the law. But he sees no contradiction in admitting that human behavior is characteristically nonrational and that the "rational man" of economics is rarely encountered in the real world. The law must come to terms with the fact that much of the behavior it regulates is intensely emotional

The question of most interest to me was the proper emotional state for judges. The book rejects the belief of the formalist who would contend that legal analysis should follow like a logical puzzle or mathematical problem. "Decision is a form of action, and there is no action without emotion," he writes. Even in "easy" cases, sound judicial decision-making may require indignation and empathy.

Posner describes judicial empathy as one of the best examples of the cognitive character of emotion for it brings home to the judge the interest of absent parties. The obvious example is a murderer who makes an elegant plea for mercy. This is particularly meaningful to this reviewer, who has presided over countless homicide trials in Baltimore. More often than not, there is a young male defendant but the victim is conspicuously absent - except for a post-mortem photograph.

Posner is correct that there need be no tension between judicial detachment and judicial empathy. The legal system calls that type of empathetic detachment "judicial temperament." The judge who is so emotionally involved in a case that she becomes blinded to the interest of absent parties lacks judicial temperament. Likewise, judges who display the weird pride of maintaining a complete inhuman indifference to parties lack appropriate emotion.

The last section of the book is a critical examination of the truth-finding capacity of the legal process. There is a superb discussion of how the principles of evidence and economics have helped resolve one of the most important functions of the legal system - the resolution of factual disputes.

Although this book is not "an easy read," I strongly urge perseverance for those interested in stepping outside the day-to-day battles of the law and grappling for an understanding of the legal process as an institution of social governance.

By the end of the first chapter, I believe the attentive reader will be fascinated, not only by the extraordinary depth of the discussion, but by the successful way this Renaissance judge has attempted to develop a more responsive legal system by using the fresh perspective of extra-legal disciplines.

Ellen M. Heller was appointed an associate judge of the Circuit Court for Baltimore in 1986 and became administrative judge in 1999 after serving since 1993 as the judge in charge of the civil docket. She was an adjunct professor at the University of Maryland School of Law from 1984 to 1993. From 1977 until 1986, she served as an assistant attorney general of Maryland.

Michael Pakenham is on vacation. His column will return on May 13.

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