Legal Procedure Needs a Dose of Common Sense

A famous judge called courtroom rules antiquated (in language that might not be allowed in court). Maybe he's on to something.

Who you calling antiquated?

Photographer: Bruno Vincent/Getty Images

Are the rules of procedure that govern the courts “antiquated crap”? That view, expressed by Judge Richard A. Posner last week, has sent tremors throughout the legalsphere. 

Posner made the comment in Slate as part of an exchange with Judge Jed S. Rakoff on the subject of whether there should be a mandatory retirement age in the federal judiciary. (Posner said “yes” and proposed age 80.) That's an old chestnut, 1 but it got readers mad.

A little less inflammatory but a lot more interesting was Posner's assertion that judges spend careers tangled in “technicalities” that are ... well, what Posner said they are.

Here I think Posner is being more subtle than his critics give him credit for. In the same exchange, he wrote that he preferred “common sense” to “reason.” He’s been excoriated for that too – but the critics may be missing his point. 

Posner is defending, not for the first time, a vision of judging that pays less attention to abstract principles and more attention to the need to craft practical solutions to concrete cases. In his book, "How Judges Think," Posner contends that judges often resort to common sense in evaluating legal arguments, and that we are the better for it. By common sense he means “what ‘everyone knows’ without having to think hard about a subject.” He derides legal technicalities in the exchange with Rakoff because they get in the way of the exercise of common sense.

Posner has a point.

Exhibit A: Consider Matuszak v. Internal Revenue Service, a simple and uncontroversial little case decided last week by the U.S. Court of Appeals for the Second Circuit. Linda Jean Matuszak’s husband pled guilty to fraud and filing a false tax return. He agreed to file accurate returns for 2007 and 2008. The Internal Revenue Service determined that he and his wife owed around $450,000 for the two years combined. 

Matuszak then petitioned to be treated as an “innocent spouse,” meaning that she would not be liable for the underpayments. The IRS granted her that status for 2007, but not for 2008. She filed a petition with the Tax Court to have the agency’s action overturned. The petition was rejected because she mailed the forms on the 91st day after the IRS made its determination. Had she made it to the post office one day earlier, the Tax Court would have considered her claim.

Matuszak then appealed to the Second Circuit, which rejected her argument. The 90-day period, the panel concluded, is “jurisdictional,” meaning that the Tax Court has no power to act on a petition filed outside of that time. 

I think it is fair to say that every single federal judge, Posner included, would have ruled the same way. Matuszak, alas, is liable along with her husband for the entire $333,000 deficiency assessed for 2008 – all because she did not make it to the post office one day earlier.

Posner’s point, I believe, is that if the rules that constrain judging lead ineluctably to this result, then there is something wrong with the rules. And indeed, most of the non-lawyer public would surely view such a result with open-mouthed astonishment. Banning Matuszak’s petition accords precisely with the prescriptive rules of judging. It does not accord at all with common sense. 

A judge who possesses the freedom to weigh the issues more carefully might balance the cost of perfect enforcement of jurisdiction against the cost to the rules of making an exception. To allow the Tax Court to consider Matuszak’s petition, even though it was mailed on the 91st day, would hardly cause the heavens to fall.

Of course Posner’s critics also have a point. The clarity and certainty of legal rules create a predictability that helps us order our lives. More to the point, in a case like Matuszak’s they simplify the workings of the bureaucracy. It is far cheaper to apply a simple 90-day rule than to ask in every case whether the rule should be waived. In the book I mentioned, Posner offers a response to this form of argument:

But the certainty of a rule is bought at a price. By excluding considerations potentially relevant to its purpose ... the rule may generate a misfit between purpose and application.”

And that of course is where the problem lies. For most judges, the issue is one of obligation: the legislature has laid down a clear rule and the duty of the judge is to follow it. Posner, however, prefers on most subjects that the legislature lay down broad standards rather than precise rules. Within those broad standards there is space for common sense to operate.

Posner has made similar points about other legal “technicalities.” In my law-school course on evidence, I share with fascinated students his withering critique of the complex hearsay rules, which he calls “archaic” and “folk psychology” (more antiquated crap). There, too, his call for greater flexibility by trial judges in deciding whether to admit evidence has excited considerable concern in the legalsphere. Again, he believes in the ability of judges to exercise common sense in determining which evidence the jury should hear. One is reminded of Oliver Wendell Holmes’s remark that the rules exclude facts that everyone else who isn’t a lawyer would consider relevant.

Lawyers and judges often have trouble with the notion that the opinions of “everyone else” should matter. Much of legal education rests on the foundation that thinking like a lawyer is different from thinking as ordinary people do, and this inculcation is not easily cast aside as we proceed through years and decades in the profession. That may be why Posner’s paean to the virtues of common sense sounds so clunky to the trained legal ear.

But I think he may be on to something. Common sense is an oft-derided aspect of moral philosophy that is every now and then rediscovered. It’s often traced to Thomas Reid, the 18th-century Scottish philosopher, and his defense of attention to the “opinions of the vulgar.” Reid believed that those untrained in philosophy might reach moral decisions that a trained philosopher, biased by education, would miss. 2  Therefore, he argued, it’s important for philosophers to pay attention to the moral views of the untrained.

We lawyers are instinctively skeptical of such propositions. Maybe we should be less so. By bringing more common sense to judging, we might wind up with legal rules that are closer to the opinions of the people affected by the law. We don’t have to believe that all the rules of process are antiquated to believe that because Linda Jean Matuszak put her petition in the mail one day late she should not have her day in court.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

  1. That question of mandatory age-based retirement is distinct from the question whether judges (especially Supreme Court justices) should be term-limited. I am against both, but I do think the argument has two reasonable sides. I discuss them briefly in chapter 9 of this book – published almost a quarter century ago – and I came late to the party.

  2. Want more on Reid’s theories? Try this book.

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Stephen L. Carter at

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