The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, for judges to achieve “sensible” resolutions of real-world disputes—by which Judge Posner means “in a way that can be explained in ordinary language and justified as consistent with the expectations of normal people” (p. 354)—they must be able to navigate the world’s complexity successfully. To apply legal rules correctly and (where judicial lawmaking is called for) to formulate legal rules prudently, judges must understand the causal mechanisms and processes that undergird complex systems, and they must be able to draw sound factual inferences from multivocal or opaque data. The problem that animates the book is that, thanks to some combination of disposition, training, and professional incentives, judges are often not adept at these tasks. Indeed, the situation is worse than that. The legal system generates its own complexity (what Posner terms “internal” complexity) precisely to enable judges “to avoid rather than meet and overcome the challenge of complexity” that the world serves up (or “external” complexity, in Posner’s terms) (p. 14). His “reflections” concern mostly how this occurs and how it can be corrected.
Mitchell N. Berman,
Judge Posner's Simple Law,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol113/iss6/3