Judge Posner's Challenge to the Philosophy of Law

Willard F. Entemann

ABSTRACT: This paper presents a conceptual analysis of Richard Posner's empirical

theory of judicial behavior. His theory opposes the conventional view which holds that
judges are insulated from external pressures so their judicial decisions will be based upon a
disinterested understanding of the law. Since economics holds that all people including
judges attempt to maximize their utilities, Posner thinks that the conventional view is an
embarrassment which presumes judges are not rational. His theory holds that the judicial
insulation has actually left judges maximizing their utilities by trading judicial utility
against leisure utility. Posner's theory presents a challenge to the hope for a disinterested
judiciary. It threatens as well to eliminate the philosophy of law by reducing it to what he
calls antecedent conditions.

The Judge's oath requires him to judge according to the law, not according to his
pleasure. Plato, Apology
The hard fact is that sometimes we must make decisions we do not like. We make them
because they are right, right in the sense that the law and the Constitution, as we see them,
compel the result Justice Kennedy concurring, Texas v Gregory Lee Johnson
In the context of his experience on the bench and his interest in the general theoretical
approach of "Law and Economics," Richard Posner has developed an important empirical
theory about judicial behavior which has significant national and international implications.
In the economic analysis of law, economics, understood roughly as capitalism, is taken as
fundamental to the understanding and application of law. Posner's theory is presented as a
further development of the general program. In this paper, I will examine important
conceptual issues related to Posner's theory, and I will contrast it with what I will call the
"conventional view" of judicial behavior.
Economics holds that people make decisions based on efforts to maximize their utilities.
That is sometimes expressed as an attempt to maximize happiness or self-interest. Two of
Adam Smith's insights are especially relevant here. A micro thesis holds that in the
commercial world people attempt to maximize their own utility while a macro thesis holds
that in a competitive economy, the pursuit of utilities on the part of producers and
consumers automatically leads to maximum welfare. Economists refer to utility
maximization as rational, and say any exceptions are so rare that they do not pose
significant exception to the general economic assumption.
Posner is concerned because the conventional view of judicial behavior presumes that
judges and justices are, on these terms, irrational. For the purposes of his analysis, Posner
concentrates on judges and justices referenced in Article III of the US Constitution. I will
follow his lead here, though both of us recognize extrapolation to other judicial settings
would be reasonably simple. From an international perspective, Article III judges have
been more exempted from the temptations and constraints of employment than other
judges. Posner points out that Article III judicial tenure is even more secure than academic
tenure:
A federal judge can be lazy, lack judicial temperament, mistreat his staff, berate without reason the lawyers
who appear before him, be reprimanded for ethical lapses, verge on or even slide into senility, be continually
reversed for elementary legal mistakes, hold under advisement for years cases that could be decided perfectly
well in days or weeks, leak confidential information to the press, pursue a nakedly political agenda, and

misbehave in ways that might get even a tenured civil servant or university professor fired; he will retain his
office.

Beyond that, the judges in question will not have their pay lowered, and judges who resist
such temptations will not have theirs raised because all judges of the same rank are paid
exactly the same. As Posner says, "It is this unique insulation of federal appellate judges
from accountability that makes their behavior such a challenge to the economic analysis of
the law, and more broadly to the universalist claims of the economic theory of human
behavior."
Standard economic analysis holds that if employers are successful in structuring conditions
of employment, the self-interested behavior of employees will conform to the interests the
employer seeks. In the case of judges, the employer is the government. The conventional
view of judicial behavior would seem hold that the purpose of the insulation is to free
judges and justices to make decisions based on a disinterested understanding of the law.
Presumably, that was the meaning in the quotations provided at the outset of this paper.
Posner's Theory. Posner argues that what I have called the conventional view is in conflict
with basic economic theory. If the conventional view is correct, the plethora of judicial
decisions provides a sufficiently large exception to maximization of utility theory that we
should conclude that it is not only falsifiable but also falsified. If, however, economic
theory is correct, the conventional view is mistaken and, as the second half of Posner's title
indicates, far from freeing judges and justices to make disinterested decisions, the
insulation only changes the ways in which they maximize their utilities. Posner argues that
judges and justices are rational, and he tells us in what ways they pursue their self interest
in the context of the unusual employment conditions.
Posner identifies two primary forces that act upon judges and justices in the process of
making their decisions and says that, since the insulation has eliminated other forces, these
have become the dominant ones. He says judges enjoy hearing cases and making judicial
decisions and, thus they are a source of positive utility. Posner analogizes this to spectators
of theater productions. Presumably, they enjoy watching the drama unfold and they enjoy
making decisions in the form of granting or withholding applause. He argues by analogy
for a positive utility in voting per se by pointing out that people vote in spite of the fact that
their vote has a vanishingly small chance of affecting the outcome. He completes the
analogies by telling us that judges and justices enjoy both watching arguments in cases
unfold and their role as voters. Thus, he suggests we should conclude the judges and
justices have a positive utility in these aspects of the job to which they have been
appointed. That fits well with utility theory since it means the judges are operating out of
self-interest and it fits well enough with conventional view since that view does not hold
that judges and justices should dislike their jobs.
Along with the judicial utility function, Posner identifies another major force in the lives of
judges and justices. He says like most of us judges and justices enjoy their leisure. In fact,
justices may enjoy their leisure even more than others. For example, he says. "Because the
judiciary has been placed on a nonprofit basis, we should expect that judges on average do
not work as hard as lawyers of comparable age and ability. I believe that this is true, at least
of appellate judges." Of course, most of us enjoy our leisure time and activities. However,
most of us are not as insulated from the pressures of employment. Judges and justices have
considerable control over how they spend their time. They can choose to emphasize either
judicial or leisure activity. Posner tells us that, whereas most enjoy hearing cases and
making decisions, they do not enjoy writing opinions. Not only is opinion writing time
consuming, but in addition, poorly written opinions may subject them criticism. Posner
says the first thing judges and justices do as case loads increase is to delegate opinionwriting to their clerks. While that takes some of the burden off them, it does not remove it

entirely because, in the end, their names will appear.

Thus far, we have dealt primarily with procedural matters. They should arouse some
concern for those who take judicial opinions to be centrally important for the philosophy of
law. The detailed precise examination of each turn of phrase in judicial opinions that
characterizes much legal study in general and the philosophy of law in particular may be
based upon false assumptions about the actual operations of the law. To turn to an analogy
in the philosophy of science, it would be as if we were to discover that scientists did not
really take the precision of calculations seriously but were ready to accept whatever seemed
convenient as produced by their graduate assistants. Nevertheless, this discovery need not
concern the conventional view much since that view is directed toward a disinterested
interpretation of the law rather than carefully developed judicial opinions. However, Posner
tells us the trade-off has an impact on the substance of the decisions as well. This is not the
place to examine the many ways Posner cites that the maximization of judicial utility
influences the decision. As a case in point, I will discuss one which Posner calls "go along"
voting.
Let us turn to an hypothetical example, which will involve a three justice appellate court.
We will concentrate on the behavior of judge C. Along with his colleagues, C has heard the
case and read the briefs. For the purposes of this exercise, let us say C has made a private
decision that the appeal is without merit and should be turned down. C, then, has gained the
benefits of spectator. Now, let us assume in conference that A expresses a strong view that
the appeal has merit and the case should be decided in the appellant's favor. B expresses
mild opposition to A's view. C now recognizes that he may be in something of a bind. If he
expresses his honest opinion, he may find himself writing an opinion for a majority
composed of him and B. That will mean at least directing his clerks' writing, being
prepared to respond to what may be well researched and clearly articulated views of A, and
so forth. As a consequence, after hearing the preliminary opinions of the other two justices,
C decides to "go along" with A. In that way, A will write the majority opinion and B may
be forced to write a dissenting opinion. Recognizing the disutility to him, B may even say
she is convinced by A to change her mind and make the decision unanimous. In any event,
C will escape opinion-writing responsibilities and, thereby, enhance his leisure time. All of
this results from what Posner says is the effort of judges and justices and everyone else to
maximize their utilities.
Implications for International Law. The American experiment in constitutional democracy
has gone further than most polities in insulating judges and justices presumably in an effort
to have them make professional decisions irrespective of their personal interests. If, as
Posner has suggested, this portion of the experiment was naively grounded and cannot
achieve its objective, there are lessons not only for the United States but also
internationally. On the basis of Posner's analysis, it is, for example, simply naive to think
that a disinterested international judiciary with binding authority might be established. In
addition, in spite of frequent criticisms from the "West," it is disingenuous to suggest that
other so-called "developing" countries should establish an independent professional
judiciary. Posner's analysis shows us that there is no such thing as a professional judiciary
capable of going beyond its self-interest in the name of the law or justice.
Professional Ethics. In explicating his understanding of judicial behavior, Posner uses three
analogies. I have already discussed two, the spectator and the voter analogy. The third is to
managers of non-profit organizations. Since judges, like non-profit managers, do not work
in a business environment, their compensation cannot be a function of corporate
profitability. Thus, Posner indicates that, like non-profit managers, judges and justices look
for non-monetary "perks" such as increased job security, more leisure opportunities,
reduced attention to efficiency, etc. as a means of substitute compensation. What is striking
about Posner's analogies is that none of them are to professions at least as that term is used
to apply to fields such as accounting, architecture, engineering, law, medicine, nursing and

even university professorships. This is not the place to enter into the contentious debate
about what constitutes a profession, but in general, we might say that professionals are
expected to be prepared to go beyond their self-interest in the name of the standards of the
profession. Prior to Posner's analysis, we might have thought of the judiciary as an
archetype profession. Conventionally speaking, we want judges to set aside their selfinterest in order to render professional decisions. Posner says that does not happen. His
analysis suggests that the entire professional enterprise is naively grounded. For example,
we should not expect physicians and nurses to set aside their self-interest and attend to the
interests of the patient; we should expect them to attempt to maximize their utilities
whatever that might mean for the patient's health care.
Philosophy of Law. In introducing his approach, Posner says, "Instead of trying to explain
directly why judges adopt one judicial philosophy or another, I shall concentrate on the
antecedent question: Are judges rational?" Of course, Posner concludes they are at least
insofar as rational is defined as maximization of utilities. Answering the "antecedent
question" as he does brings into question philosophy of law itself. Once it is discovered that
judicial decisions arise out of efforts to maximize personal utility, the philosophic
discussion of them and the accompanying opinions would seem to be a rather empty
exercise. We should not examine "judicial philosophy" but the specific utility functions of
the judges. Posner's theory threatens to eliminate by reduction the philosophy of law.
Another important analogy may be available to us in the case of business ethics. One of the
reasons many philosophers have found "business ethics" to be so elusive is that once it is
understood that, economically speaking, the goal of business is to maximize profits,
philosophically there is not much more to be said.
A Lacuna. We should recall that Adam Smith put forward both a micro thesis and a macro
thesis. The micro thesis, which Posner has extended, is that people act so as to maximize
their utilities (happiness). The macro thesis is that such actions lead naturally to desired
ends. In the case of business, they lead to general welfare. Posner may be right in regard to
his micro thesis. As he says, we can only wait to see whether attempts to falsify the thesis
are successful. However, Posner does not address himself to the macro thesis. What needs
to be shown is that by the pursuit of the maximization of their happiness, judges and
justices, whether knowingly or not, actually achieve justice.
There is a ready example for Posner in the law. In our adversarial system, lawyers, present
as vigorous a case as they can on their client's behalf. On the micro level, the compensation
conditions for lawyers insure they represent their clients' interests. On the macro level, it is
then up to the courts to decide what is required by the law or by justice. Since we are still
presumably interested in having courts achieve justice or, at the very least, a faithful
interpretation of the law, Posner needs to show how the pursuit of judicial self-interest
achieves those socially important objectives. There is some prima facie reason for
skepticism since many of the "judge-invented" procedures addressed by Posner may lead
them on occasion to vote in ways even they think are legally inappropriate in order to
maximize their happiness. Since economists insist that utility functions are about falsifiable
theories and not psychological accounts, the prima facie skepticism may be overcome, but
it will take some effort to do so in the future if this program is to be successful.