posner-on-legalism.txt

“Law” in a judicial setting is simply the material, in the broadest sense, out of which judges fashion their decisions. Because the materials of legalist decision making fail to generate acceptable answers to all the legal questions that American judges are required to decide, judges perforce have occasional—indeed rather frequent—recourse to other sources of judgment, including their own political opinions or policy judgments, even their idiosyncrasies.

Posner, Richard A.. How Judges Think (Pims - Polity Immigration and Society Series) (p. 9). Harvard University Press. Kindle Edition.

The true middle ground, as long ago explained by Roscoe Pound, is a tripartite conception of law as legal doctrines (rules and standards), techniques for deriving and applying doctrines (techniques such as stare decisis—decision according to precedent—which often means distinguishing or overruling a precedent), and social and ethical (in a word, policy) views.

To which should be added the exercise, in certain circumstances, of pure discretion. When a judge schedules the start of a trial for 9:00 A.M. rather than 9:30 A.M., he is not guided by law in any meaningful sense. He is making a discretionary determination. Yet it is not “lawless.” I am therefore led to embrace an adjectival rather than a substantive understanding of “law” in relation to judicial behavior. The analogy is to the proper understanding of “luck.” “Luck” is a noun but does not denote a property. To be lucky is to be the beneficiary of a random event, or more commonly of a series of such events (a “run”), rather than to possess something—“luck”—that alters the odds in one’s favor. In the expression “he made his own luck,” the word “luck” actually denotes its opposite; it denotes a reduction in randomness. Similarly, when we say that a judge’s decisions are in conformity with “the law,” we do not mean that we can put his decisions next to something called “law” and see whether they are the same. We mean that the determinants of the decisions were things that it is lawful for judges to take into account consciously or unconsciously. A judge is not acting lawlessly unless there is no authorized method by which he could deny some claim that a litigant was urging on him, yet he denied it nevertheless.

Posner, Richard A.. How Judges Think (Pims - Polity Immigration and Society Series) (pp. 43-44). Harvard University Press. Kindle Edition.

Some of the resulting uncertainties could be dispelled by the adoption of legalist meta-rules, such as that a statute should not be invalidated unless its unconstitutionality is clear beyond a reasonable doubt, that statutory exceptions are to be construed narrowly, that judges in interpreting statutory or constitutional provisions must never search beneath the surface meaning for the purpose of the provision, or that precedents can be overruled only by legislation. But these rules, though advocated by some legalists, cannot be derived by logical or quasi-logical means from agreed-upon premises; they are not themselves fruits or exemplars of legalistic reasoning. For example, nowhere does the Constitution say that constitutional interpretation must be strict. That rule must be posited; it cannot be deduced. The meta-rules represent policy choices, and policy choices so unsatisfactory that as a result there are no consistent legalists (recall my quotation from Justice Scalia in the introduction) in the judiciary, as distinct from the academy, where reality does not constrain imagination.

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These are statutes that judges treat with the same freedom as they treat common law precedents, as when the Court said, again of the Sherman Act, that the Act “cannot mean what it says.” The Supreme Court’s conservative legalists joined Justice Kennedy’s opinion denominating the Sherman Act a common law statute, without a murmur.

Posner, Richard A.. How Judges Think (Pims - Polity Immigration and Society Series) (pp. 47-48). Harvard University Press. Kindle Edition. 

Consider Bell Atlantic Corp. v. Twombly.70 Rule 8(a)(2) of the Federal Rules of Civil Procedure requires of a complaint or other pleading only that it contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” This is what is called “notice pleading.” It supplanted the requirement (which prevailed before the civil rules were promulgated in 1938) that the complaint plead facts that would show that the plaintiff was entitled to the legal relief his suit was seeking. Bell Atlantic holds that a complaint charging that an agreement between firms not to compete, in violation of antitrust law, must contain “enough factual matter (taken as true) to suggest that an agreement was made . . . An allegation of parallel conduct and a bare assertion of conspiracy will not suffice.”71 The Court rejected the rule stated in a much-cited earlier decision, Conley v. Gibson, “that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”72 The majority in Bell Atlantic was concerned that Conley’s heretofore canonical formula might force a defendant in an antitrust case to conduct expensive pretrial discovery in order to demonstrate the groundlessness of a plaintiff’s case.73 The dissent pointed out correctly that district judges have ample authority to prevent abusive discovery. But the majority said that the rules granting judges that authority “have been, and are doomed to be, hollow.”

I am not concerned with which faction had the better case. All that interests me is that nothing in the repertoire of legalism could have decided it

Posner, Richard A.. How Judges Think (Pims - Polity Immigration and Society Series) (p. 53). Harvard University Press. Kindle Edition. 

You cannot, for example, just by staring at the language of the due process clauses of the Fifth and Fourteenth Amendments, determine whether they authorize judges to create abortion rights. You can adopt an interpretive rule that constitutional rights cannot be created by implication but must be stated expressly in the Constitution—more precisely, that specific constitutional rights, such as the right to an abortion, cannot be derived from constitutional rights expressed in general terms, such as the right not to be deprived of liberty without due process of law. But the choice of that interpretive rule is not something that can be derived by reasoning from agreed-upon premises.

Posner, Richard A.. How Judges Think (Pims - Polity Immigration and Society Series) (p. 104). Harvard University Press. Kindle Edition. 

The problem goes deeper. Interpretation presupposes an intending author. Suppose one sees scratched in the sand on a beach the words “Call your mother,” but you realize that the words were formed by the mindless action of wind and waves. It would be insane if, realizing this, you nevertheless called your mother because that was the “plain meaning” of the words.

Posner, Richard A.. How Judges Think (Pims - Polity Immigration and Society Series) (p. 195). Harvard University Press. Kindle Edition.