My initial thoughts on Judge Posner’s new book, Divergent Paths

February 1, 2016
Judge Posner’s latest book, Divergent Paths: The Academy and the Judiciary, is a provocative read for anyone interested in today’s debates about fixing law schools and the federal bench.


Law professors and federal judges tend to be held in high esteem, but Judge Posner, who describes himself as “outspoken,” doesn’t appear to think much of either. The book covers some well-rehearsed ground and swings at some low-hanging fruit: the narrow backgrounds of the current Supreme Court justices, the esoteric nature of much legal scholarship (in that critique he echoes the Chief Justice), the poor quality of most briefs and opinions, and law schools’ inadequacies when it comes to preparing students for practice.

As always, Judge Posner is a superbly entertaining analyst and writer. A bit of a curmudgeon, he also rails against such diverse targets as the statutory canons of constructions, misuses and overuses of “as such” and “here,” the poor management of judges’ chambers, and what he sees as the fetishization of Bluebooking and of citation format generally. (I’m not sure that law schools obsess about the Bluebook as much as he thinks they do.)

But where the book really shines is in its proposed solutions–solutions that he admits would have to overcome inertia in both the academy and the judiciary. He calls for a bigger role for clinical faculty, including in such “doctrinal” courses as evidence and civil procedure. He recommends that law schools pay far more attention to writing, including judicial writing. He prescribes more exposure to the “actual” work of judges, as opposed to an “idealized” view of the judicial process. (It’s a good thing he draws that distinction, because if there’s one thing today’s law students don’t need, it’s even more exposure to appellate opinions.) And, on the judiciary side, he also makes innovative suggestions about process, management, and continuing education.

As someone who works with both lawyers and judges for a living, I was particularly struck by his harsh words about legal-writing courses for law students and opinion-writing training for judges. He claims that the legal writing academy fixates on CRAC and IRAC and other facile systems that are “mechanical, unimaginative, and downplay[] facts.” He also insists that even at the most elite law schools, today’s law students need to learn “writing,” not “legal writing.” Amen to that.