[Deadlock]
 
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RICHARD POSNER'S TWO CENTS ABOUT FLORIDA 2000:
A Review of Breaking the Deadlock

By DAVID C. LUNDSGAARD
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Friday, Sept. 14, 2001

Richard Posner, Breaking the Deadlock (Princeton University Press 2001).

Breaking the Deadlock is a very loosely organized collection of Judge Richard Posner's opinions (political, statistical, legal, and more) about the 2000 election and its aftermath. I've read it, but, unless you are an incurable Posner-watcher, I can't think of a particularly good reason why you should, too.

The book is neither particularly informative nor especially illuminating about what happened during and after the election — nor is it particularly persuasive in its judgments about what it all meant. And I think you will find this to be true even if you are a fan of Judge Posner's (which I am) and even if you agree with his basic position that George W. Bush did not "steal" the election (which I do). This is not a bad book — it is just not a very good one.

A Book Flawed by Pervasive Disorganization

The fundamental problem with Breaking the Deadlock is that its arguments are presented in such a disjointed fashion as to make them unpersuasive and, worst of all, not particularly interesting to read. The book simply lacks organization and focus, both generally and even paragraph by paragraph. Many portions read like they are little more than a series of random thoughts about the election that Judge Posner jotted down in the order in which they occurred to him. Most of it is just unnecessary.

The first chapter, for example, is a lengthy series of ruminations about democracy derived from some of the basic texts on voting and political choice theory. These ruminations do not add to our understanding of democratic theory generally (they are just a rehash), nor do they illuminate much about the 2000 election.

The point of the chapter can be boiled down to this: "Perfect democracy is impossible (and probably undesirable) and we don't live in a perfect democracy anyway (think, for example, of the Senate), so we shouldn't get ourselves too bent out of shape over the fact that our election system might not generate perfectly 'democratic' results in reflecting voter preferences." That's fine, and pertinent to Florida 2000, but how much Rousseau, Locke, and history of the expansion of American suffrage do we need to get there? Moat of this is wasted effort that obscures the fundamental and relevant point Judge Posner is trying to make — and this problem is not confined to the first chapter, but rather recurs throughout the book.

Much of the disorganization undoubtedly derives from Judge Posner's overly ambitious attempt to engage in a "multi-disciplinary" review of his subject, incorporating law, political theory, and statistics. Perhaps it is too early for that kind of wide-ranging analysis of the 2000 election, or perhaps it was simply too much work to do well in a short period of time, but the result was not a success, and Breaking the Deadlock eventually breaks down under the weight of Judge Posner's ambition. It tries to cover so many topics and express so many opinions, so quickly, that it is ultimately superficial and unfinished. There is simultaneously too much and too little in the book.

Rock critic Dave Marsh once described Pink Floyd as a band that never threw any idea away, good, bad, or indifferent, with predictable and uneven results. Marsh could have been describing Breaking the Deadlock, which would have benefited immensely from some aggressive editing.

The book starts off well enough. Posner poses a fairly interesting question: Assuming that the popular election in Florida was a "statistical tie" — meaning that any number of recounts by any method that was subject to error (in other words, any method humans can devise) would not definitively resolve who actually had the most votes — who should be declared the winner?

This is a challenging question, and its pursuit could have made for a very interesting book. It is even possible — though not very likely — that such a book lurks within the pages of Breaking the Deadlock, and could have been revealed with some judicious editing, to weed out the irrelevancies and put what remained into good order.

Unfortunately, that book is not the one Posner published — and the basic lack of organization of this book, as well as its inclusion of so much unnecessary material, fatally obscures whatever underlying value it has.

Whatever else one can say, there is no question that this text fails to achieve the basic goal it set for itself: to make the election "intelligible . . . to a general audience." Indeed, even a more specialized audience, composed only of attorneys or even only of Posner-philes, might still find Posner's latest to be rough going.

Conclusions Unsupported By Legal Reasoning

Breaking the Deadlock is also not overly persuasive in its judgments about the legal proceedings that gripped the nation for six weeks. The basic legal texts around which the disputes revolved — the constitutions, statutes, and legal opinions — are critical to those judgments. Yet Judge Posner asks his readers to accept his broad, conclusory characterizations of those documents, frequently without quoting any actual language from those texts at all.

In so doing, Judge Posner misses an opportunity to truly make legal proceedings intelligible to a general audience, by explaining them specifically, defining legal terms and commenting on legal procedures.

And he loses credibility with a legal audience, too. Judge Posner's conclusions, announced without a full explanation of their underlying reasoning, do little to convince a reader that any of that reasoning is correct. To the contrary, in the legal profession, analysis this conclusory is usually a huge red flag that the author is reasoning from a mistaken or cramped interpretation of the key documents, and, accordingly, that the conclusions he is drawing are not to be trusted.

A lawyer's first instinct, after reading Judge Posner's analysis, would be to take out all the underlying texts and conduct their own analysis — not the reaction an author ought to desire, or inspire.

Finally, a Decent Critique of the Academy

Without a doubt, the best thing about this book is its tone. Unlike the vast bulk of what has been written about the 2000 election, Breaking the Deadlock is not hysterically partisan. You can read it without flinching in embarrassment for a supposedly learned author who is acting like a petulant eight-year old, demanding that George Bush be "punished" by the organized disruption of governmental functions.

There have been too many such assaults on the civility of our public discussion of the election. Breaking the Deadlock is an admirable step in the direction of measured discussion of that event.

Perhaps not surprisingly, then, Judge Posner is on strongest ground when he is critiquing the academic commentary on the election and the attacks on the Supreme Court that followed its decision halting the Florida recount. Here, Posner's critique is organized; focused; supported by actual examples of the problem he is identifying and actual quotes that he is criticizing; and, ultimately, interesting and persuasive. It could have served as a useful template for the rest of the book.

If you really need to know what Judge Posner personally thought about Florida 2000, read this book; otherwise, wait for the real histories to be written.


David C. Lundsgaard, Yale Law School '92, is a partner with the Seattle law firm of Graham & Dunn.

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