BAR WARS
Epps, Garrett
BAR WARS Richard Posner, radical feminists, Charles Dickens, and the fight over legal theory by Garrett Epps After 15 years as a novelist and journalist, I entered law school last year. Six...
...No federal statute requires appointment of counsel in such cases...
...Posner attempts to refute West by insisting that Kafka's novel is not "about" law but only about the author's own mental state...
...Fits and starts Law schools once maintained another tie to the world of practice—"clinical" programs that taught students about law by giving them real clients to represent...
...and besides, books are not "about" only one thing...
...so does the idea that great works of literature provide no useful insight into the same issues...
...The profession has changed...
...which has its decaying houses and its blighted lands in every shire...
...But a "law and economics" judge might sweep all of this aside and rule that the case should pass "the test of the market" If the prisoner cannot attract a lawyer willing to work for a contingent fee, then "the natural inference is that he does not have a good case" In fact, I am talking about a real case, Merritt v. Faulkner, decided in 1983 by the court on which Judge Posner sits...
...economists and economics-minded lawyers can explain much nonmarket as well as market behavior, including behavior of litigants, criminals, prosecutors, judges, accident victims, and other persons involved in or affected by such legal institutions as criminal law, property law, tort law, and criminal procedure" Note that he does not say "help to explain," but "explain" The idea that economics is the most important tool for accounting for, say, rape seems surprising...
...so overthrows the brain and breaks the heart...
...In the legal academy of the eighties, that exam question is not as farfetched as it might seem...
...The plaintiff in Merritt was blind and locked in a steel cage...
...As a counterexample, West cited Joseph K., the protagonist of The Trial, and other Kafka characters who cooperate in their own destruction out of fear of authority and a kind of delight in humiliation...
...But mostly Posner tries to rule West's argument inadmissible...
...Powell belonged to an older generation of jurists, now passing from the scene, who believed in law as an autonomous discipline, a kind of humane science that drew not only—or even primarily—on economic thought but on literature, history, and moral philosophy as well...
...The bottom line Before he was appointed to the bench in 1981, Posner's academic writing argued that judges should focus only on maximizing the wealth of society as a whole...
...which has its ruined suitor, with his slipshod heels and threadbare dress, borrowing and begging through the round of every man's acquaintance...
...Kafka was a lawyer, after all, and even his mental state tells us something "about" the law...
...Bigtime Lit Crit, in all its quarrelsome glory, has hit the law schools...
...Posner attempts to refute West by insisting that Kafka's novel is not "about" law but only about the author's own mental state...
...Couldn't Lady Macbeth's erratic behavior form the basis for a defense of insanity, or at least diminished capacity...
...nonetheless, with true "assume-a-can-opener" insouciance, Posner postulated an all-knowing, almost magical market that would learn of his claim and make an intelligent determination about it...
...In fact, seldom before in its history has legal education been such a battleground of competing academic ideologies...
...the heart of Law and Literature is the argument that literature and literary discourse, while perhaps legitimate in a small way, cannot be permitted to threaten the primacy of economic thought in the law...
...The prisoner's blindness imparted to the case a "pathetic aura," Posner wrote, but was otherwise irrelevant to the case...
...But a close connection between classroom and bar kept legal academics focused on the practical consequences of what they taught...
...Whatever else it may be, The Trial is a book about law as well...
...There aren't many Lewis Powells rising to the bench these days...
...For one thing, law schools can no longer afford to hire lawyers who have been in private practice very long...
...How would this theory—and its academic competitors—play out in an actual case...
...Not every law teacher needs to be a former practitioner, and some of the old ways of teaching and writing about law were sterile and meaningless...
...Law study is enriched by the study of economics, literature, history, political science, and other academic specialties...
...Now law schools, like most graduate schools, are beginning to float free of the off-campus world altogether, sailing off into the blue sky of deconstruction, the Coase theorem, patriarchy, and Roberto Mangaibeira Unger...
...having reshaped private law, he is now reaching out for new fields to conquer...
...But Posner, his seventh circuit colleague Frank Easterbrook, and other Reagan appointees to the bench and to regulatory agencies, are applying conservative economic analysis to the law with a sometimes disturbing eagerness...
...One doesn't need to agree with all or even most of his opinions to see that he was trying conscientiously to interpret something called the law— something he believed to have an existence and a moral force independent of his own political opinions...
...Law and Literature: A Misunderstood Relation...
...that there is not an honorable man among its practitioners who would not give—who does not give— the warning, `Suffer any wrong that can be done you, rather than come here!' " Larry Tribe's limo The U.S...
...One kind of "law and literature" theorist might "deconstruct" the Supreme Court's phrases to "unpack" their meaning in this context...
...Clinics are expensive and vaguely leftwing...
...The three judge panel ruled that the inmate was entitled to counsel...
...Fair enough...
...Lawyers of that generation could still aspire to a career combining courtroom work, corporate practice, family law, criminal defense, and even teaching...
...Could Macbeth argue that he had "reasonably relied" on the prophecies of the Weird Sisters...
...Each one has subtleties and internal disagreements...
...is happening to legal theory—a disturbing phenomenon that Yale's Owen Fiss has dubbed "the death of the law...
...and I pick Powell as its exemplar advisedly...
...First, "law and economics" encourages judges to make large—and sometimes indefensible— assumptions about the world...
...For example, here's how Posner dismisses Bleak House, the greatest legal novel ever written: "Someone who wants to learn about the nineteenth-century English chancery court is not likely to spend much time on Bleak House, because there are fuller and soberer sources of data" But would all those sources together reveal as much about the Chancery, or about law in Dickens's time and ours, as this one paragraph of Bleak House...
...and this is, of course, not the law...
...Major law firms today are highly specialized bureaucracies, and young lawyers are searching less for a general career than for a profitable specialty...
...With 2,500- or 3,000-billablehour minimums to meet and $40,000 student loans to pay off, they don't have time for Dickens...
...Law and Literature is one more sign that the next 50 years may see a change for the worse...
...It also offers a chance to look at what Garrett Epps is a former fiction editor of The Washington Monthly, a former reporter for The Washington Post, and the author of two novels...
...another might use his or her knowledge of fictional depictions of captivity to imagine the prisoner's situation...
...Economic theory, Posner says, shouldn't just guide legal thinking in overtly commercial areas like antitrust or economic regulation...
...The function of law, as many have rightly argued, is to fashion a public morality—a way of resolving contentious issues like integration, executive power, abortion, womens' rights, and church-state relations without resorting to the naked ability of the powerful to impose their will...
...He is currently a first-year student at Duke Law School...
...which has its decaying houses and its blighted lands in every shire...
...which has its worn-out lunatic in every madhouse, and its dead in every churchyard...
...Southern district judges, most of them no more racially enlightened than their neighbors, slowly became forces for change because "the law" said change had to come...
...Ronald Reagan and Ed Meese, of course, saw to that...
...This is the Court of Chancery...
...The prisoner seeks court-appointed counsel to pursue a lawsuit against the prison doctors who, he says, did not properly treat him...
...For many of us who remember the segregated, semitotalitarian South of the 1950s and before, the archetypal example is the revolution wrought by Brown v. Board of Education...
...His book* is intended as a superweapon in this battle of the sects...
...A Virginia blue-blood, Powell practiced with a silk-stocking firm, headed the stuffy American Bar Association, and was named to the bench by Richard Nixon as part of the GOP's "Southern strategy...
...professors below the very top must be concerned with law-journal articles, not briefs, if they want academic tenure and promotion...
...hardline legal feminists dismiss law as patriarchal mystification...
...The distinction is hard to maintain...
...Second, there is a faintly heartless air about "law and economics" Issues that may appear to be of transcendent moral importance are revealed to be a matter of the bottom line...
...Many major law schools have pruned them into insignificance or abolished them altogether...
...But rigorous economic thought, liberal and conservative, has let fresh air into the dusty attic of Anglo-American tort law, blowing away some of the formalism and selfrighteousness that had built up over centuries...
...The illustration shows us some important things about legal ideology in general, and about "law and economics" in particular...
...Far more than they were a generation ago, law schools and their faculties are creatures, not of the courtroom, but of the academic sensibility...
...No left-wing "crits" or radical feminists are being named to the federal bench today, or are likely to be for quite a while...
...indeed, as a prospective judge, he seemed to embody left-wing criticism of the American legal profession as the handmaiden of power and privilege...
...in a widely criticized dissent, Posner made the argument cited above...
...Six weeks into my criminal law course, I dreamed the exam question was: `Assess the criminal liability of the major characters in Shakespeare's Macbeth, and suggest possible defenses their lawyers might advance at their trials" I set to work...
...The "law and economics" movement insists that law is (or should be) economics and nothing else...
...nor has the Supreme Court interpreted the Constitution to require appointment of a lawyer in this type of civil case, though appointment is within the discretion of the court...
...Law and Literature is a symptom of the state of academic legal theory and of its influence on the bench: the humane, general perspective is increasingly giving way to a narrow, rigid, and highly ideological specialization...
...For example, here's how Posner dismisses Bleak House, the greatest legal novel ever written: "Someone who wants to learn about the nineteenth-century English chancery court is not likely to spend much time on Bleak House, because there are fuller and soberer sources of data" But would all those sources together reveal as much about the Chancery, or about law in Dickens's time and ours, as this one paragraph of Bleak House...
...Whatever else it may be, The Trial is a book about law as well...
...efficiency is the only thing that matters...
...After a series of medical treatments (some applied mistakenly to his good eye), he ends up blind...
...This is the Court of Chancery...
...In these days of Japan envy, it's customary to complain about the distorting effect American legalism has on private transactions...
...It may be apparent from my tone that I disagree with Judge Posner's style of law...
...Supreme Court has used Bleak House as evidence for the proposition that "Due to sloth, inattention, or desire to seize tactical advantage, lawyers have long indulged in dilatory practices" The opinion citing Dickens, Roadway Express Inc...
...That generation was also one of the most successful in the history of American law...
...the heart of Law and Literature is the argument that literature and literary discourse, while perhaps legitimate in a small way, cannot be permitted to threaten the primacy of economic thought in the law...
...but the striking thing about each of them is that, in their most extreme forms, they all more or less explicitly argue that law—both as an academic discipline and as a social institution—has no identity independent of some other intellectual system...
...One of his fellow judges responded, "I am not prepared to consign to the verdict of the marketplace the issue of prisoner representation...
...A judge influenced by Critical Legal Studies might ask in what ways these rules embody and reinforce social hierarchies...
...they were, in a way, the last recognized generalists in society...
...But on the bench, Powell was conservative, but also independent-minded, nonideological, and humane...
...which so exhausts finances, patience, courage, hope...
...which so exhausts finances, patience, courage, hope...
...One doesn't need to be a legal mossback to regret some of the effects of this trend...
...which has its worn-out lunatic in every madhouse, and its dead in every churchyard...
...Bleak House Law and Literature can best be seen as a preemptive strike against an invasion of Posner's intellectual turf...
...The distinction is hard to maintain...
...In the past 20 years, as well, the gulf between the practicing bar and the academy has widened...
...Called "law and literature," the literary school of law is just one of many intellectual factions contending for supremacy in legal academe today...
...v. Piper, was written by Justice Lewis Powell, who retired in 1987...
...and besides, books are not "about" only one thing...
...The popular image of the law professor maintaining a lucrative practice on the side—Larry Tribe arriving at the Supreme Court in a limo to represent Pennzoil, or Alan Dershowitz championing socialite Claus von Bulow—is an exception...
...A legal feminist might try to reinterpret the problem as one not of rules but of relationships...
...And last, among all the schools of thought, "law and economics" is the only one that is having a major, direct, contemporary impact on the law as it is decided...
...that there is not an honorable man among its practitioners who would not give—who does not give— the warning, `Suffer any wrong that can be done you, rather than come here!' " Larry Tribe's limo The U.S...
...Adherents of "Critical Legal Studies" argue that law is a cover for society's hierarchical structure...
...economists and economics-minded lawyers can explain much nonmarket as well as market behavior, including behavior of litigants, criminals, prosecutors, judges, accident victims, and other persons involved in or affected by such legal institutions as criminal law, property law, tort law, and criminal procedure" Note that he does not say "help to explain," but "explain" The idea that economics is the most important tool for accounting for, say, rape seems surprising...
...Legal education, in theory at least, prepares its students to do something—and something important at that...
...Harvard University Press, $25.00...
...Court of Appeals for the Seventh Circuit is a leading light of the "law and economics" movement and a potential Republican appointee to the Supreme Court...
...Judge Richard Posner of the U.S...
...Slowly, with many fits and starts, the courts and the civil rights movement forced an entire region to dismantle a tidy and efficient racial dictatorship...
...so does the idea that great works of literature provide no useful insight into the same issues...
...He was neither a liberal nor a strong advocate of civil rights...
...which gives to monied might the means abundantly of wearying out the right...
...Today's law schools both reflect and intensify those changes...
...so overthrows the brain and breaks the heart...
...which gives to monied might the means abundantly of wearying out the right...
...But let's not forget that public law has served its function surprisingly well over the past half-century...
...Fairness and justice are meaningless jargon ("I hate justice," Posner once said, paraphrasing Oliver Wendell Holmes...
...Kafka was a lawyer, after all, and even his mental state tells us something "about" the law...
...and "law and literature" advocates use semiotics and deconstruction to argue that legal rules are incoherent rhetoric...
...But mostly Posner tries to rule West's argument inadmissible...
...which has its ruined suitor, with his slipshod heels and threadbare dress, borrowing and begging through the round of every man's acquaintance...
...salaries on campus can't keep up with those at big firms, where 25-year-old associates routinely start at $60,000 and up...
...But no other discipline can replace a belief in the law itself, and society is shortchanged by the attempt...
...As for Posner himself, he is brilliant, persuasive, and unbelievably energetic...
...The book was inspired, at least in part, by an article in which Robin West, a feminist professor now at the University of Maryland, disputed Posner's assumption that individuals who are not coerced act "rationally" within a system to maximize their own satisfaction and profit...
...Let's imagine that a federal prison inmate injures his eye...
...but there's another reason...
...Supreme Court has used Bleak House as evidence for the proposition that "Due to sloth, inattention, or desire to seize tactical advantage, lawyers have long indulged in dilatory practices" The opinion citing Dickens, Roadway Express Inc...
...The analysis continued until I awoke in a cold sweat...
...and the law journals more and more want theory...
...Economic theory, Posner says, shouldn't just guide legal thinking in overtly commercial areas like antitrust or economic regulation...
...An appellate judge reviewing the prisoner's motion would have to make a complex judgment about the meaning of some phrases in Supreme Court cases (a prisoner has a right to "meaningful access" to courts, for example) and of some court-ordered standards (whether the prisoner's case is "colorable," or legally plausible, and so on...
Vol. 21 • May 1989 • No. 4
