Via Bill Patry’s Copyright Blog, I’ve caught up with Judge Posner’s recent book review on analogy and judicial reasoning (Reasoning By Analogy, 91 Cornell L. Rev. 761 (2006), reviewing Lloyd L. Weinreb, Legal Reason: The Use of Analogy in Legal Argument (Cambridge Univ. Press 2005). Bill posts a comment, in support of Judge Posner, because the argument invokes some famous copyright cases. I’m less interested in the copyright implications for now. I’m curious about Judge Posner’s juxtaposition of two propositions which I think are difficult to reconcile.
First, criticizing Lloyd Weinreb for focusing on the flash of the law, not the substance, as it were, Judge Posner writes:
Reasoning by analogy as a mode of judicial expression is a surface phenomenon. It belongs not to legal thought, but to legal rhetoric. Weinreb has confused how judges think with how they talk.
He continues, later:
Weinreb’s basic misunderstanding may be that he thinks law a thing, and therefore something that has a perimeter, whereas in fact it is an activity. From the standpoint of the judge, which is the standpoint from which Weinreb discusses reasoning by analogy, it is the activity of deciding cases. The duty to decide is primary. The materials usable for decision include everything that the society recognizes as pertinent to a legal decision, and that certainly includes economic considerations in deciding on a regime of property rights for natural resources.
Here’s what puzzles me: If law is doing (and on that score, I certainly agree), then in what sense is the talking not part of the doing? Judge Posner is right, on pragmatic grounds, to refuse to define “law” as a unique domain, and I understand that “deciding” and “justifying” are convenient categories for analytic purposes. But they are conveniences, not absolutes. If Judge Posner is so rightly reluctant to be categorical about subject matter, then why persist with such a categorical approach to method? (And why, for that matter, implicitly divide the world so categorically into subject matter and method in the first place?) The talking (what Judge Posner refers to as the “mere” rhetoric) certainly isn’t all of the doing, but language — the justifying — is an inescapable part of what the law “is.” Neither, for that matter, can the talking (judicial talking, since that’s what’s at issue in these pieces) be so neatly distinguished from the thinking. The issue isn’t merely philosophical; to a large degree, it’s empirical: To what extent does anyone fully reason through the solution to a problem in his/her mind, and only *then* inscribe the solution somehow? Or, alternatively, are the problem-solving and the inscribing interwined?
Justifying and deciding, or talking and doing, in other words, can’t be so neatly separated from one another. To recognize the role of analogy in the former means, in my view, inevitably accepting the role of analogy in the latter. And that’s entirely consistent, I think, with Judge Posner’s view of “the law” as *not* an autonomous domain. For a lengthy elaboration of the point, see Dan Hunter, Reason is Too Large: Analogy and Precedent in Law, 50 Emory L.J. 1197 (2001).
If as a judge you have a large universe of plausible analogies from which to draw and no very clear winner–which I think is liable to be a common circumstance–then to my mind you’re probably not reasoning by analogy. I suspect judicial tradition (i.e. something different than precedent) narrows the effective breadth of the universe, because analogies or styles of analogizing are bound to gain legitimacy with use, which would cause the unused ones to fade into the background, at least for the conservative judicial reasoner. The fewer and less diverse your options for analogy, the more your conclusion looks to have been decided by the strength of an analogy…it stands to reason. But more than shopping the universe of analogies, I imagine a judge shops a universe of styles of reasoning or understanding, and then goes analogical if it strikes him or her that the nicest of all explanations is to be found in the analogical universe. Just some naive hunches. I haven’t deeply assimilated a lot of opinions.
You ask, “in what sense is the talking not part of the doing?” I haven’t read Weinreb, or Posner on Weinreb, or Patry on Posner on Weinreb. But I know, from other of Judge Posner’s writings, that he has written opinions (the talking) that do not report his actual reasons (at least, not the most important, or weighty, or persuasive reasons) for holding as he does in a given case (the doing). My vague recollection is that he views the U.S. Supreme Court’s decision in Bush v. Gore as being a prime example of the at-least-somewhat-fake-public-reasons phenomenon. How often does Posner write such partial (or total) counterfeit opinions? Who knows? Who can know? (Perhaps even he forgets, after a time.)
I agree that justifying is an inescapable part of what judges do (although not juries or legislatures, and usually not executives). I think, too, that Judge Posner is adding an additional step beyond private justification – namely, (what he might call) publicly palatable justification. Having added that step, it is easy enough to separate the talking from the doing.
I like the invocation of “public palatability.” I tend to think of judicial opinions as just a wordy category of crowd control.
Having poked around a bit this evening, I can suggest that if you’re interested in this thread, you may enjoy taking a look at Judge Posner’s “Judges’ Writing Styles (and Do They Matter?),” 62 University of Chicago Law Review 1421 (1995); and “Pragmatic Adjudication,” 18 Cardozo Law Review 1 (1996).
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