Friday, July 31, 2009

Legal Philistines

"I am delighted to be here and to have the opportunity to discuss with you a subject of great importance and mutual concern. This subject is the intellectual content of law--or lack thereof. ... Indeed, I believe that law as it it taught, studied, adjudicated, and practiced in this country is insufficiently intellectual. I will be saying the same thing if I say American law is too provincial, too Philistine; that it is self-satisfied; that it is intellectually isolated; that it is for the most part derivative and unoriginal; that it is becoming less intelligent, less useful, and less relevant every day; that it is a prey to fads and charlatanry; that it has low standards; that it is methodologically reactionary and compromised, politically timid, and prone to pandering; and for good measure, that it is anticompetitive", 16 N. Kentucky Law Review, 415, 415, "Philistinism In Law", Posner, Richard (1989). "There can be little doubt that law affects behavior by altering incentives. ... But lawyers tend to believe that law affects behavior not only by changing incentives but also and perhaps more importantly by changing attitudes, which in turn affects behavior. ... Perhaps so, but where's the evidence?", 417. Lawyers skills "do not, in other words, enable our legal rules and institutions, and proposed changes in them, to be analyzed. For that type of evaluation other skills are needed--skills not imparted at any stage in the training of a lawyer", 418. "First, lawyers ought to know the principles of statistical inference", 420. "Lawyers and judges therfore ought to understand how to reason from probabilities. The law of evidence is based to a large extent on intuitions about probability, and many of these intuitions may be incorrect. Every law student should be required to demonstate a mimimum proficiency in statistical analysis. ... Second, and related, law students should study psychology. ... The relation to statistics lies in the fact that persons unacquainted with statistical principles tend to make serious mistakes in dealing with unfamiliar or low probability events. ... Third, law students ought to study the theory of social or collective choice, with particular reference to voting theory and interest groups. ... Fourth, law students should be required to study the legislative process", 421. "Fifth, and still related, law students need a course in political theory. ... Sixth, law students need to study jurisprudence, the field that explores the most fundamental questions about the law. ... Seventh, law students have to study the legal system--our own and that of representative foreign countries. ... Eighth, law students should have a working knowledge of the theory of finance", 422.

Is that all Judge Posner?


Anonymous said...

Me thinks Judge Posner describes the training of leaders for our nation.

That is a rich menu for mere advocates.

Anonymous said...

Hello. And Bye.