Divergent Paths: The
Academy and the Judiciary
by Richard A. Posner
(Author)
Judges and legal
scholars talk past one another, if they have any conversation at all. Academics
couch their criticisms of judicial decisions in theoretical terms, which leads
many judges―at the risk of intellectual stagnation―to dismiss most academic discourse
as opaque and divorced from reality. In Divergent Paths, Richard Posner turns
his attention to this widening gap within the legal profession, reflecting on
its causes and consequences and asking what can be done to close or at least
narrow it.
The shortcomings of
academic legal analysis are real, but they cannot disguise the fact that the
modern judiciary has several serious deficiencies that academic research and
teaching could help to solve or alleviate. In U.S. federal courts, which is the
focus of Posner’s analysis of the judicial path, judges confront ever more
difficult cases, many involving complex and arcane scientific and technological
distinctions, yet continue to be wedded to legal traditions sometimes centuries
old. Posner asks how legal education can be made less theory-driven and more
compatible with the present and future demands of judging and lawyering.
Law schools, he points
out, have great potential to promote much-needed improvements in the judiciary,
but doing so will require significant changes in curriculum, hiring policy, and
methods of educating future judges. If law schools start to focus more on
practical problems facing the American legal system rather than on debating its
theoretical failures, the gulf separating the academy and the judiciary will
narrow.
