The Posner Difference: Blunt Talk and Pragmatism
Summary Judgment is American Lawyer senior writer Susan Beck's regular opinion column for the Litigation Daily.
On Wednesday the U.S. Court of Appeals for the Federal Circuit heard oral arguments in the smartphone patent battle between Apple Inc. and Motorola Mobility (now owned by Google Inc.). The court is reviewing a controversial ruling issued last year by Seventh Circuit Judge Richard Posner. Sitting by designation in federal district court in Chicago, Posner tossed dueling claims by both companies. Neither side had offered a valid damages model or a persuasive case for injunctive relief, the judge concluded, suggesting that the litigation was more or less a waste of time.
The ruling was classic Posner: original, pugnacious, and pragmatic.
I recently stumbled across a series of YouTube videos of Posner produced by an online learning company called Big Think. The videos, posted in April, present the 74-year-old judge expounding on his judicial philosophy. He's bracingly blunt.
In one, entitled "Interpreting the Law," Posner is asked to compare U.S. Supreme Court Justices Stephen Breyer and Antonin Scalia. His answer strips away the undeserved reverence that often shapes discussions about the high court. "Oh, I think it's just a liberal, conservative difference," he answers. "I don't think these comprehensive Constitutional theories [they espouse] are worth the paper they're written on. . . .It's liberals and conservatives." He added that judges often "construct some elaborate rationalization" for their rulings, when really they're swayed by personal views. "I think these guys have feelings—political feelings, moral feelings, emotional feelings—about these cases and they dress up their feelings in an elaborate way," Posner said.
In another video, entitled "What Do You Do?," he complains that lawyers too often make abstract arguments without focusing on real-world consequences. "I'm disturbed by the degree to which the lawyers arguing cases to us present them in terms of this traditional [moralistic] vocabulary [of law], without focusing us on the facts or practical considerations, including economics," he said. "A pragmatist is someone who thinks the consequences of a proposed course of action are the critical factors in deciding whether to follow that course. . . .I'd like to get the lawyers to focus and like my own response to a case to focus on what those consequences are."
Posner displayed his pragmatism in the Apple decision now before the Federal Circuit, when he highlighted the folly of an endless, judicially sanctioned smartphone war of attrition. He did it again in George McReynolds v. Merrill, Lynch, Pierce, Fenner & Smith, the racial discrimination case brought by black brokers that settled late last month for $160 million. During oral arguments before the Seventh Circuit in January 2012, Posner sounded frustrated with plaintiffs lawyer Linda Friedman. He was struggling to understand how Merrill Lynch's training program worked—including how trainees are recruited to join teams of experienced brokers and accounts are passed along—and Friedman's initial answers didn't satisfy him. He needed more facts and context. "You're not explaaaaining yourself," he whined at one point, in his distinctive nasal voice. (You can listen to the recording here.)
Friedman had a tough job: to convince the panel that they should certify the class of Merrill brokers under the tougher standard dictated by the U.S. Supreme Court's ruling in Wal-Mart v. Dukes. Friedman argued that Wal-Mart in fact supported class certification because Merrill Lynch authorized seasoned brokers to choose the trainees they'd invite to join their teams. This was a company-wide policy that caused a disparate impact, since successful white brokers chose people like them, she argued.
One month later, the court agreed and granted class certification. Writing for a unanimous panel, Posner distinguished the case from Dukes by scrutinizing how Merrill Lynch's training program operated, and how it affected the men and women who worked there.
Another practical consideration that Posner cares about is efficiency in litigation. Posner believes efficiency is a compelling reason to certify a class, and he said so in McReynolds. That puts him at odds with a few members of the Supreme Court, including Scalia, who rejected the notion that efficiency mattered in the Dukes majority opinion. Last month, in a different case, Posner essentially poked a stick at Scalia by refusing to decertify a consumer class action brought over Whirlpool washing machines. The high court had told him to reconsider his certification of the class, but Posner refused, insisting that efficiency is a legitimate rationale supporting certification.
Our court system could use more pragmatic judges, who are guided by the consequences of their rulings. And we could use more judges like Posner, who are willing to pull away the curtain and speak honestly about how our court system really works—and how it could work better.