Reflections on State Liability: Judge Posner on Judicial Verbosity

One of the issues that has bedevilled common law courts is the law of state liability: when does official misconduct give rise to a right of action in damages? Various answers have been given. Usually there is a threshold test of proximity, related in some way to the statute that empowers the decision-maker. And there is usually a blanket exclusion of liability in some circumstances, for what are sometimes described as non-justiciable or policy decisions.

In his recent book, Reflections on Judging, Richard Posner takes aim at the problem of complexity. Some of this complexity is external, caused by technological change for example. But much of it is internal to the legal system, created by lawyers and judges in order to mask rather than to manage external complexity.