A distinguished and experienced appellate court judge, Richard A. Posner offers in this new book a unique and, to orthodox legal thinkers, a startling perspective on how judges and justices decide cases. When conventional legal materials enable judges to ascertain the true facts of a case and apply clear pre-existing legal rules to them, Posner argues, they do so straightforwardly; that is the domain of legalist reasoning. However, in non-routine cases, the conventional materials run out and judges are on their own, navigating uncharted seas with equipment consisting of experience, emotions, and often unconscious beliefs. In doing so, they take on a legislative role, though one that is confined by internal and external constraints, such as professional ethics, opinions of respected colleagues, and limitations imposed by other branches of government on freewheeling judicial discretion. Occasional legislators, judges are motivated by political considerations in a broad and sometimes a narrow sense of that term. In that open area, most American judges are legal pragmatists. Legal pragmatism is forward-looking and policy-based. It focuses on the consequences of a decision in both the short and the long term, rather than on its antecedent logic. Legal pragmatism so understood is really just a form of ordinary practical reasoning, rather than some special kind of legal reasoning.
Supreme Court justices are uniquely free from the constraints on ordinary judges and uniquely tempted to engage in legislative forms of adjudication. More than any other court, the Supreme Court is best understood as a political court.
About The Honorable Richard A. PosnerSee more books from this Author
On NRO’s home page today is “How Judge Posner Thinks Judges Should Think”—my review of Richard A.Apr 17 2008 | Read Full Review of How Judges Think
Second, Posner fails to make clear whether the phrase “oppose abortion rights” means merely “believe that the Constitution does not confer a right to abortion” (in which case, of course, the legislative process remains available to protect abortion) or means also “opposes the legislative conferra...Apr 17 2008 | Read Full Review of How Judges Think
In How Judges Think, does Judge Posner succeed in his stated goal of providing a “cogent, unified, realistic, and appropriately eclectic account of how judges actually arrive at their decisions in nonroutine cases”?Apr 02 2008 | Read Full Review of How Judges Think
It also contradicts Posner’s interest earlier in the book on the external and internal constraints on judges: within Posner’s own scheme, it makes no sense that a lessening of constraints would make a judge more constrained.Apr 03 2008 | Read Full Review of How Judges Think
In particular, although (as stated in Part 2) I think that Posner falls far short of his stated goal of providing a descriptive model of judicial behavior, anyone interested in the topic will find his discussion worth reading.Apr 04 2008 | Read Full Review of How Judges Think
Posner states that he aims to offer a “cogent, unified, realistic, and appropriately eclectic account of how judges actually arrive at their decisions in nonroutine cases” — that is, in those “rather frequent” instances in which judges can’t “just apply rules.” But his book, in the end, offers mu...Apr 17 2008 | Read Full Review of How Judges Think
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