‘Realist’ or ‘formalist’: Part 2

MOSKOVITZ ON APPEALS

Richard Posner recently announced his retirement from judging at the 7th U.S. Circuit Court of Appeals. In my last column, I discussed his "realist" approach to judging, contrasting it with the "formalist" approach. Here's Posner's description of the "realist," from an "exit interview" he gave to Adam Liptak of the New York Times. Liptak reported:

"He called his approach to judging pragmatic. His critics called it lawless. 'I pay very little attention to legal rules, statutes, constitutional provisions,' Judge Posner said. 'A case is just a dispute. The first thing you do is ask yourself -- forget about the law -- what is a sensible resolution of this dispute?'

"The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. 'And the answer is that's actually rarely the case,' he said. 'When you have a Supreme Court case or something similar, they're often extremely easy to get around.'"

And here's Posner's description of the "formalist" view: "Judges are simply applying rules, and the rules come from somewhere else, like the Constitution, and the Constitution is sacred. And statutes, unless they're unconstitutional, are sacred also."

In my experience, most judges do both. So you win more cases if your briefs address both. Use the statutes, cases, and rules, but also explain the justice underlying them, and make persuasive "justice" arguments even if not supported by any authority.

But most lawyers do not do both. Their briefs are formalist, invoking and distinguish cases, without discussing why accepting their arguments would lead to a just result (as opposed to merely a result that favors their client).

Why do lawyers tend to be so formalist?

One reason: They present formalist briefs because they read appellate opinions, see that they are quite formalist, and think the judges are persuaded by formalist arguments. But the opinions are usually more formalist than the judges' actual thinking, because the judges want the public to believe that the judges are - in Chief Justice John Roberts's terms -- merely umpires calling balls and strikes, based on a strike zone established by others. And the opinions are written -- at least in part -- by research assistants whose law schools trained them to be formalists.

And that's true of the lawyers themselves. Their law schools trained them to see the practice of law through formalist-colored glasses.

I'm a former law professor, and I've been following the reaction of legal academics to Posner's endorsement of the realist tradition during his exit interview. It's not pretty. One law prof called Posner's comments "appalling, an offense to the rule of law, and grounds for impeachment."

Law professors are predominantly formalist. This is one reason why the practicing bar often pushes law schools to supplement the classroom experience with more "practical" training. This usually means extra courses in trial practice, clinical programs, writing classes, and the like. I've always pushed for more practical training during the bulk of a law student's law school experience -- practical training right in the big core classes (property, torts, contracts, etc.). Law professors who teach these core classes assign formalist case books that plod from case to case. During the class, these profs do the same thing. They parse each case and analyze the logic behind each, then move on to the next one. Classic formalism. Only rarely do they what consider might really motivate a judge. But it's hard to do this if you don't have access to the record on appeal, which they don't.

I retired from teaching law a couple of years ago. When I taught, I tried to add some realism to the class. I'd tell my students: "My job is to help you practice law, which includes predicting how a court will rule on your client's new facts. So we need to figure out how judges decide cases. If they based their rulings on the positions of the stars, I'd be teaching you astrology. They don't, so I don't. But what do they do? Their opinions make it seem that they base their rulings solely on statutes and precedent cases. But I don't think that tells us the whole story. Let's try to figure out what really motivated them to rule as they did."

I taught advanced appellate practice, where it was pretty easy to inject my realist approach to brief-writing into my small, third-year class. But I also taught constitutional law -- a large class learning a core course, usually taught in formalist terms. Here's an example of how I tried to inject a note of realism into the class.

In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court required police to warn all suspects "in custody" of their rights to silence and counsel, before "interrogation." Over the years, however, the court has come down with a series of opinions that pretty much eviscerated Miranda. But none of those decisions overruled Miranda.

When discussing those Miranda-limiting opinions, I went beyond the language and reasoning in the opinions themselves. I asked the students to consider this question: why the court didn't simply overrule Miranda? If the Justices don't like Miranda, why not simply get rid of it, rather than constantly chipping away at it?

I told them what I think is really going on. Miranda has become a cultural icon. You can't watch a cop show on TV without seeing "the warnings." And around the world, America is known for its fair (well, relatively fair) treatment of arrestees, via Miranda warnings. I'm sure several Supreme Court justices -- probably a majority -- would love to overrule Miranda and be done with inventing gimmick after gimmick to cabin the case. But that would be like overruling Roe v. Wade -- another jurisprudentially questionable icon. Overruling Miranda or Roe would put the Supreme Court in the political hot seat. So the court has chipped away at both of them, but left their cores intact.

This brings us to what I see as the root problem with Miranda, as seen by several of the justices: Why require the police to encourage a suspect not to talk to them? So long as the police do not beat or threaten the guy (acts barred by other decisions), getting him to tell his story is good, not bad. When our kids misbehave, don't we expect them to tell us what happened? When cookies are missing from the cookie jar, do we tell little Susie "you have the right not to tell Mommy what you did with the cookies, and the right to a lawyer paid by Mommy"?

It would have been impolitic for the Supreme Court to say in their opinions what I told my class they were really saying: "We don't like Miranda, but overruling it would make us look bad. So we'll trim it back to the point where it doesn't do much harm."

But knowing that this is what's really going on would be very helpful to a lawyer litigating a new Miranda issue -- on either side, prosecution or defense. A defense attorney would be well advised to go beyond the particular issue in his case and the particular language of the precedent cases, and address the guts of the problem: Why shouldn't the police be allowed to interrogate a suspect without threats or force? What important interests are served by stopping the police from doing this?

This is the realist approach. Sometimes it works, and sometimes it doesn't. But appellate attorneys who fail to give it a try are making a big mistake. And law profs who fail to teach it are short-changing their budding lawyers-to-be.