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How Judges Think
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.
400 pages, Hardcover
First published April 30, 2008
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About the author
Richard A. Posner
91 books181 followersRichard Posner is Senior Lecturer in Law at the University of Chicago Law School.
Following his graduation from Harvard Law School, Judge Posner clerked for Justice William J. Brennan Jr. From 1963 to 1965, he was assistant to Commissioner Philip Elman of the Federal Trade Commission. For the next two years he was assistant to the solicitor general of the United States. Prior to going to Stanford Law School in 1968 as Associate Professor, Judge Posner served as general counsel of the President's Task Force on Communications Policy. He first came to the Law School in 1969, and was Lee and Brena Freeman Professor of Law prior to his appointment in 1981 as a judge of the U.S. Court of Appeals for the Seventh Circuit, where he presided until his retirement on September 2, 2017. He was the chief judge of the court from 1993 to 2000.
Judge Posner has written a number of books, including Economic Analysis of Law (7th ed., 2007), The Economics of Justice (1981), Law and Literature (3rd ed. 2009), The Problems of Jurisprudence (1990), Cardozo: A Study in Reputation (1990), The Essential Holmes (1992), Sex and Reason (1992), Overcoming Law (1995), The Federal Courts: Challenge and Reform (1996), Law and Legal Theory in England and America (1996), The Problematics of Moral and Legal Theory (1999), Antitrust Law (2d ed. 2001), Law, Pragmatism, and Democracy (2003), Catastrophe: Risk and Response (2004), Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (2005), How Judges Think (2008), and A Failure of Capitalism: The Crisis of '08 and the Descent into Depression (2009), as well as books on the Clinton impeachment and Bush v. Gore, and many articles in legal and economic journals and book reviews in the popular press. He has taught administrative law, antitrust, economic analysis of law, history of legal thought, conflict of laws, regulated industries, law and literature, the legislative process, family law, primitive law, torts, civil procedure, evidence, health law and economics, law and science, and jurisprudence. He was the founding editor of the Journal of Legal Studies and (with Orley Ashenfelter) the American Law and Economics Review. He is an Honorary Bencher of the Inner Temple and a corresponding fellow of the British Academy, and he was the President of the American Law and Economics Association from 1995 to 1996 and the honorary President of the Bentham Club of University College, London, for 1998. He has received a number of awards, including the Thomas Jefferson Memorial Foundation Award in Law from the University of Virginia in 1994, the Marshall-Wythe Medallion from the College of William and Mary in 1998, the 2003 Research Award from the Fellows of the American Bar Foundation, also in 2003 the John Sherman Award from the U.S. Department of Justice, the Learned Hand Medal for Exellence in Federal Jurisprudence from the Federal bar Council in 2005, and, also in 2005, the Thomas C. Schelling Award from the John F. Kennedy School of Government at Harvard University.
Following his graduation from Harvard Law School, Judge Posner clerked for Justice William J. Brennan Jr. From 1963 to 1965, he was assistant to Commissioner Philip Elman of the Federal Trade Commission. For the next two years he was assistant to the solicitor general of the United States. Prior to going to Stanford Law School in 1968 as Associate Professor, Judge Posner served as general counsel of the President's Task Force on Communications Policy. He first came to the Law School in 1969, and was Lee and Brena Freeman Professor of Law prior to his appointment in 1981 as a judge of the U.S. Court of Appeals for the Seventh Circuit, where he presided until his retirement on September 2, 2017. He was the chief judge of the court from 1993 to 2000.
Judge Posner has written a number of books, including Economic Analysis of Law (7th ed., 2007), The Economics of Justice (1981), Law and Literature (3rd ed. 2009), The Problems of Jurisprudence (1990), Cardozo: A Study in Reputation (1990), The Essential Holmes (1992), Sex and Reason (1992), Overcoming Law (1995), The Federal Courts: Challenge and Reform (1996), Law and Legal Theory in England and America (1996), The Problematics of Moral and Legal Theory (1999), Antitrust Law (2d ed. 2001), Law, Pragmatism, and Democracy (2003), Catastrophe: Risk and Response (2004), Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (2005), How Judges Think (2008), and A Failure of Capitalism: The Crisis of '08 and the Descent into Depression (2009), as well as books on the Clinton impeachment and Bush v. Gore, and many articles in legal and economic journals and book reviews in the popular press. He has taught administrative law, antitrust, economic analysis of law, history of legal thought, conflict of laws, regulated industries, law and literature, the legislative process, family law, primitive law, torts, civil procedure, evidence, health law and economics, law and science, and jurisprudence. He was the founding editor of the Journal of Legal Studies and (with Orley Ashenfelter) the American Law and Economics Review. He is an Honorary Bencher of the Inner Temple and a corresponding fellow of the British Academy, and he was the President of the American Law and Economics Association from 1995 to 1996 and the honorary President of the Bentham Club of University College, London, for 1998. He has received a number of awards, including the Thomas Jefferson Memorial Foundation Award in Law from the University of Virginia in 1994, the Marshall-Wythe Medallion from the College of William and Mary in 1998, the 2003 Research Award from the Fellows of the American Bar Foundation, also in 2003 the John Sherman Award from the U.S. Department of Justice, the Learned Hand Medal for Exellence in Federal Jurisprudence from the Federal bar Council in 2005, and, also in 2005, the Thomas C. Schelling Award from the John F. Kennedy School of Government at Harvard University.
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June 25, 2010I had read some of Richard Posner's How Judges Think in draft last year, but have resumed reading the book now that it has appeared. Every member of the United States Senate should read it, so that we might have meaningful confirmation hearings on federal judges. Our public discourse about what judges really do proceeds at an infantile level; Judge Posner's bracing book could help it grow up. His criticisms of the self-serving and often delusional rhetoric of current members of the U.S. Supreme Court is especially welcome. - Brian Leiter
July 30, 2016
This book is not, of course, really about how judges think; it is about the various approaches judges (particularly federal appellate judges, of which Posner is one) take to statutes and the Constitution, and how their political views interact with these approaches. It is also an argument in favor of pragmatism in most instances (this is Posner’s approach), and a criticism of the other approaches. The result is far from a dry study. Posner’s writing skills and passion as a critic make this an excellent read.
January 6, 2020
The book’s main objective is to develop a theory on how judges balance political, personal and legal factors when making decisions.
The book’s most thought provoking parts was about the political nature of judges and how the judicial system is inherently non-democratic. There is an old adage that says judges are meant to be like baseball umpires, simply calling balls and strikes on cases that come their way. But posner says this over simplifies the facts, because umpires do not also create many of the rules they have to apply. Posner says there are actually three types of judges, using the umpire analogy. The first umpire explains that he calls them as they are, the second that he calls them as he sees them, and the third says there are no balls and strikes until he calls them. Plus, if judges were simply the first type of umpire, then people wouldn’t be so concerned with Supreme Court Justices. Changing judges can change the law (which, if true, begs the question, what even is the law?)
The discussion on judicial incentives is also relevant for today’s political environment. Posner dives into an analysis of term limits during this part, explaining that since judges can change the law, they are inherently political figures, and the absence of terms limits vis-a-vis politicians is profoundly undemocratic. But the court, at the same time, cannot be expected to be neutral: “Political issues by definition cannot be referred to a neutral expert for resolution. A political dispute is a test of strength in which the minority gives way not because it is convinced that it is wrong, but because it is convinced that it is a minority. Political issues can be resolved only by force” or one of its substitutes like voting.
Things like precedent are meant to keep the courts in line somehow, but precedent also has its issues. First, it is just highly suggested, not mandatory for SCOTUS (lower courts have to follow higher courts’ decisions.). Second, precedent injects path dependence into law in that where you are or end up depends on where you began. “Today’s law may be what it is not because of today’s needs but because of accidents of judicial appointment many years ago that resulted in decisions that no one agrees with today but that courts let stand as a matter of prudence.”
Overall, very interesting components to this book, which I have tried to take out and explain above. A lot of the book is quite boring and about things like the judicial labor market. I recommend a full read to those very interested in law; otherwise a quick skim will do. The book scores a 2/10 on the readability scale but well over a 7/10 on the thought-provoking scale. For goodreads, I’ll give it a 3.5.
The book’s most thought provoking parts was about the political nature of judges and how the judicial system is inherently non-democratic. There is an old adage that says judges are meant to be like baseball umpires, simply calling balls and strikes on cases that come their way. But posner says this over simplifies the facts, because umpires do not also create many of the rules they have to apply. Posner says there are actually three types of judges, using the umpire analogy. The first umpire explains that he calls them as they are, the second that he calls them as he sees them, and the third says there are no balls and strikes until he calls them. Plus, if judges were simply the first type of umpire, then people wouldn’t be so concerned with Supreme Court Justices. Changing judges can change the law (which, if true, begs the question, what even is the law?)
The discussion on judicial incentives is also relevant for today’s political environment. Posner dives into an analysis of term limits during this part, explaining that since judges can change the law, they are inherently political figures, and the absence of terms limits vis-a-vis politicians is profoundly undemocratic. But the court, at the same time, cannot be expected to be neutral: “Political issues by definition cannot be referred to a neutral expert for resolution. A political dispute is a test of strength in which the minority gives way not because it is convinced that it is wrong, but because it is convinced that it is a minority. Political issues can be resolved only by force” or one of its substitutes like voting.
Things like precedent are meant to keep the courts in line somehow, but precedent also has its issues. First, it is just highly suggested, not mandatory for SCOTUS (lower courts have to follow higher courts’ decisions.). Second, precedent injects path dependence into law in that where you are or end up depends on where you began. “Today’s law may be what it is not because of today’s needs but because of accidents of judicial appointment many years ago that resulted in decisions that no one agrees with today but that courts let stand as a matter of prudence.”
Overall, very interesting components to this book, which I have tried to take out and explain above. A lot of the book is quite boring and about things like the judicial labor market. I recommend a full read to those very interested in law; otherwise a quick skim will do. The book scores a 2/10 on the readability scale but well over a 7/10 on the thought-provoking scale. For goodreads, I’ll give it a 3.5.
October 27, 2008
A more accurate title would be: "How Posner Thinks."
March 20, 2018
What appears at first to be eloquent, intellectual writing is quickly revealed to be rambling and masturbatory. Fascinating ideas are sparsely scattered within frequently digressive and mundane observations disguised, thinly at times, within extremely intellectual prose.
February 3, 2019
Inspiringly lucid prose. Took me a while to read just because I found myself agreeing so strongly with it, but I'm not sure how it could have offered more challenge or surprise. A few great lines (which all can be fairly directly applied to business and product management):
84-85: Most judges blend the two inquiries, the legalist and the legislative, rather than addressing them in sequence. Their response to a case is generated by legal doctrine, institutional constraints, policy preferences, strategic considerations, and the equities of the case, all mixed together and all mediated by temperament, experience, ambition, and other personal factors. A judge does not reach a point in a difficult case at which he says “The law has run out and now I must do some legislating.”
120: I conjecture that Holmes — surprisingly given his distinguished lineage, his professional success, his commanding presence, and his wartime prowess — did not take himself very seriously. He was a wit, and wit implies a sense of incongruity, including the incongruity between one’s pretensions and one’s achievements. If you do not take yourself very seriously you are unlikely to fool yourself into thinking that you have all the answers.
126: Agency costs are triggered not only by disloyalty but also, and perhaps especially in the case of American judges, by uncertainty. When the agents are judges and the principal is the Unites States, the agents have trouble figuring out what their principal wants them to do.
131: Even when individual performance is difficult to measure, an ordinal ranking may be feasible —it may be obvious that Judge X is better than Judge Y, though how much better, and indeed whether either is any good, may be unknowable.
205: Judicial insensitivity to academic criticism derives in part from the differences between judges and professors in working conditions, incentives, constraints, selection, outlook, and social role. Many judges think that academics do not understand the aims and pressures of judicial work and that as a result much academic criticism of judicial performance is captious, obtuse, and unconstructive.
302: It is a source of frustration to brilliant people to be unable to persuade their intellectual inferiors, and a natural reaction is to seek more time to persuade, knowing that they can out-argue their duller colleagues. What they may not realize, being intellectuals and therefore exaggerating the power of reasoned argument, is that such argument is ineffectual when the arguers do not share common premises and — what turns out to be related—that people do not surrender their deep-seated beliefs merely because they cannot match wits with the scoffers.
84-85: Most judges blend the two inquiries, the legalist and the legislative, rather than addressing them in sequence. Their response to a case is generated by legal doctrine, institutional constraints, policy preferences, strategic considerations, and the equities of the case, all mixed together and all mediated by temperament, experience, ambition, and other personal factors. A judge does not reach a point in a difficult case at which he says “The law has run out and now I must do some legislating.”
120: I conjecture that Holmes — surprisingly given his distinguished lineage, his professional success, his commanding presence, and his wartime prowess — did not take himself very seriously. He was a wit, and wit implies a sense of incongruity, including the incongruity between one’s pretensions and one’s achievements. If you do not take yourself very seriously you are unlikely to fool yourself into thinking that you have all the answers.
126: Agency costs are triggered not only by disloyalty but also, and perhaps especially in the case of American judges, by uncertainty. When the agents are judges and the principal is the Unites States, the agents have trouble figuring out what their principal wants them to do.
131: Even when individual performance is difficult to measure, an ordinal ranking may be feasible —it may be obvious that Judge X is better than Judge Y, though how much better, and indeed whether either is any good, may be unknowable.
205: Judicial insensitivity to academic criticism derives in part from the differences between judges and professors in working conditions, incentives, constraints, selection, outlook, and social role. Many judges think that academics do not understand the aims and pressures of judicial work and that as a result much academic criticism of judicial performance is captious, obtuse, and unconstructive.
302: It is a source of frustration to brilliant people to be unable to persuade their intellectual inferiors, and a natural reaction is to seek more time to persuade, knowing that they can out-argue their duller colleagues. What they may not realize, being intellectuals and therefore exaggerating the power of reasoned argument, is that such argument is ineffectual when the arguers do not share common premises and — what turns out to be related—that people do not surrender their deep-seated beliefs merely because they cannot match wits with the scoffers.
March 17, 2020
Long, rambling, inconsistent, and in desperate need of an editor, this book was frustrating - largely for what it could have been. At its worst, this book is mean spirited. It's not enough for Posner to make his argument but he must impugn the character of the thinkers with whom he disagrees. Unfortunately, embedded within this mess are real insights.
For example, Posner convincingly shows that most federal judicial decisions are neutral applications of rule to facts. However, there are some number of cases that can't be decided using orthodox legal methods--cases that hinge on an interpretation of vague statutes or implicate implied constitutional rights (eg right to privacy). For these cases in the "open area," how decisions are made is heavily dependent on the level of federal court and thus the amount of discretion available to the judge. According to Posner, Supreme Court Justices, who have the greatest amount of discretion, make decisions in the open area based largely on unconscious political (not necessarily partisan) intuitions, life experiences, and personality traits (eg social dominance).
It's just a shame that this book wasn't more focused on these sorts of insights.
For example, Posner convincingly shows that most federal judicial decisions are neutral applications of rule to facts. However, there are some number of cases that can't be decided using orthodox legal methods--cases that hinge on an interpretation of vague statutes or implicate implied constitutional rights (eg right to privacy). For these cases in the "open area," how decisions are made is heavily dependent on the level of federal court and thus the amount of discretion available to the judge. According to Posner, Supreme Court Justices, who have the greatest amount of discretion, make decisions in the open area based largely on unconscious political (not necessarily partisan) intuitions, life experiences, and personality traits (eg social dominance).
It's just a shame that this book wasn't more focused on these sorts of insights.
December 16, 2022
This book explores how judges balance political, personal, and legal factors when making decisions. It discusses the political nature of judges, the non-democratic nature of the judicial system, and term limits for judges. It identifies three types of judges and discusses precedent, which is suggested but not required for the Supreme Court and can introduce path dependence into law. Although many of the terms were unfamiliar to me, Posner's philosophical writing style made it understandable for someone without a law degree. Despite its flaws, such as a need for editing and attacking the characters of those with whom the author disagrees, it offers insights on how most federal judicial decisions are based on neutral application of rules to facts. In the "open area," some cases cannot be resolved using traditional legal methods and depend heavily on the level of federal court and the judge's discretion. Supreme Court Justices, with the most discretion, make decisions in the open area based on unconscious political intuitions, life experiences, and personality traits.
June 5, 2022
3.5 stars!
"Common way in which judges arrive at their conclusion. the category into which to place the situation presented to them for judgment, does not leap into their minds at once. On the contrary, several categories struggle in their minds for the privilege of framing the situation before them. And since there is that struggle, how can they do otherwise than select the one that seems to them to lead to a desirable result."
Posner is a wonderful writer, and I liked his take on judging, it seems more nuanced, more complex, and intelligent than other books I've read on the matter, ones praising originalism. could have to do with the writer and could do with the method of interpretation itself.
was a bit long at times, but overall an eye-opening read.
"Common way in which judges arrive at their conclusion. the category into which to place the situation presented to them for judgment, does not leap into their minds at once. On the contrary, several categories struggle in their minds for the privilege of framing the situation before them. And since there is that struggle, how can they do otherwise than select the one that seems to them to lead to a desirable result."
Posner is a wonderful writer, and I liked his take on judging, it seems more nuanced, more complex, and intelligent than other books I've read on the matter, ones praising originalism. could have to do with the writer and could do with the method of interpretation itself.
was a bit long at times, but overall an eye-opening read.
October 23, 2022
Moest dit boek voor een vak lezen, meestal is dat droge meuk maar dit viel me niet tegen!!
Erg interessant. Het is een kijk op de rechter en hoe ze te werk gaan, inclusief verschillende theorieën om het opmerkelijk variërende gedrag van de rechter te verklaren.
Niet helemaal mijn interessegebied, maar dit leest vrij makkelijk en maakt het onderwerp wat luchtiger.
Ook ligt de focus op de Amerikaanse rechter, en in Nederland zijn de rechters gelukkig niet zo extreem als daar. Maar toch is de link tussen de Nederlandse rechter en het boek goed te maken.
Erg interessant. Het is een kijk op de rechter en hoe ze te werk gaan, inclusief verschillende theorieën om het opmerkelijk variërende gedrag van de rechter te verklaren.
Niet helemaal mijn interessegebied, maar dit leest vrij makkelijk en maakt het onderwerp wat luchtiger.
Ook ligt de focus op de Amerikaanse rechter, en in Nederland zijn de rechters gelukkig niet zo extreem als daar. Maar toch is de link tussen de Nederlandse rechter en het boek goed te maken.
November 25, 2021
The author lifts the curtain on the adjudication process when traditional legal sources of decision making fall short, which happens more frequently than one might expect and seemingly in proportion to the practical impact of the case’s decision (e.g. precedent setting or upending). He does this in a way that’s interesting and understandable even to a layperson like myself. I highly recommend this book to anyone who wants insight into this vital part of the machine that keeps society running!
August 7, 2018
Questions unanswered-
- what is the definition of a "good" judge?
- how do you measure performance of a judge?
- how do you incentivise and enforce "good" behaviour?
- what is the definition of a "good" judge?
- how do you measure performance of a judge?
- how do you incentivise and enforce "good" behaviour?
April 22, 2021
Posner outlining his jurisprudence and talking a whole lot of shit. When he's wrong he's spectacularly wrong. But he's got some good stuff in there.
November 3, 2021
Judge Posner was one of the best. He retired semi-recently, in 2017, and began the next phase of his life by launching the Posner Center for Justice for Pro Se's. Sadly, this lasted for just two years, because the need was overwhelming. Posner actually said he retired because he felt the system was unjust to pro se litigants.
This book, then, is not designed for pro se litigants, or laypersons, but legal scholars. And it was extremely difficult for me to read, so I can only imagine what it is like for everyone else not steeped in this sort of material. There are moments of pure brilliance in it, but because of its extremely limited appeal, it only gets 4 stars.
Posner was one of the greatest judges of our time, though he does dismiss Justice Douglas for "flout[ing] perfectly sensible norms of judging" and "help[ing] to give Realism a bad name. In this book, he lays out 9 theories of judicial behavior, and it seems clear that he considers himself a "pragmatist" -- and since there is no "realist" category, one can presume he also considers himself that. And this is why he was a great judge, because though he brought economic analysis of the law to the forefront of legal education, and appeared at times to be something of a libertarian, he clearly had a soft spot for the powerless in society. Thus, he was unpredictable.
And so too, is this book, for example, when he lays out the Bayesian theory of ascertaining the truthfulness of witnesses (excerpted in review below), which may be the most confounding paragraph I have ever read in my life, and probably is not a joke, but definitely could be. And then there is the reference to the "can't helps" or "puke" test (a statute is only unconstitutional only if it makes you throw up).
Posner is ridiculously erudite, and his comments on the then-current make-up of the Supreme Court (in 2007) are probably the most entertaining portion of the book. I doubt anyone but law students, lawyers, and especially judges will read. Certainly, if I ever became a judge, I would revisit it. But the odds of that happening seem rather slim.
http://flyinghouses.blogspot.com/2013...
This book, then, is not designed for pro se litigants, or laypersons, but legal scholars. And it was extremely difficult for me to read, so I can only imagine what it is like for everyone else not steeped in this sort of material. There are moments of pure brilliance in it, but because of its extremely limited appeal, it only gets 4 stars.
Posner was one of the greatest judges of our time, though he does dismiss Justice Douglas for "flout[ing] perfectly sensible norms of judging" and "help[ing] to give Realism a bad name. In this book, he lays out 9 theories of judicial behavior, and it seems clear that he considers himself a "pragmatist" -- and since there is no "realist" category, one can presume he also considers himself that. And this is why he was a great judge, because though he brought economic analysis of the law to the forefront of legal education, and appeared at times to be something of a libertarian, he clearly had a soft spot for the powerless in society. Thus, he was unpredictable.
And so too, is this book, for example, when he lays out the Bayesian theory of ascertaining the truthfulness of witnesses (excerpted in review below), which may be the most confounding paragraph I have ever read in my life, and probably is not a joke, but definitely could be. And then there is the reference to the "can't helps" or "puke" test (a statute is only unconstitutional only if it makes you throw up).
Posner is ridiculously erudite, and his comments on the then-current make-up of the Supreme Court (in 2007) are probably the most entertaining portion of the book. I doubt anyone but law students, lawyers, and especially judges will read. Certainly, if I ever became a judge, I would revisit it. But the odds of that happening seem rather slim.
http://flyinghouses.blogspot.com/2013...
December 4, 2025
It was fun and stimulating to get a peek into the minds of judges and see how things work behind the scenes. here is an excerpt of a longer review I wrote:
Allow me to put myself in the judge's shoes for a second:
Ok, 1 min mediation; inhale, exhale, phew. what do we have here? let's see: I am a generalist so I need to think about everything super fast and to the best of my knowledge. Where does public opinion stand on this, what does my experience tell me? Should I lean into that? does my gender has any say here? Man, I probably have deep seated biases and beliefs that I am not aware of that are bound to influence my decision, but I wanna do good. I truly do. It’s true that a republican appointed me; or was it a democrat? exactly, that has nothing to do with my decision, right? right? I feel like I already have an intuition about how we should adjudicate this, I need to weigh everything we have here against that and see. But, what if that’s the wrong way to go about it and my intuition succeeds because it was stronger than the facts, policy implications, and future of law. Sorry Bayes, but I can't put all my eggs in your basket. Besides, I want the other judges to respect me, so if the issue doesn’t absolutely warrant dissent, I won’t dissent. Should I dissent, the case will become more popular than ever. Do I want that? It’s really crucial that I show deference to the continuation of the institution of law too. okay, I guess I am ready to make a semblance of a decision now. hey-- my talented law clerk who writes all of my opinions so I have some leisure to think-- show me what you wrote.
Inescapably, there are more factors at play here, but this roughly how judges think under pressure. In short, you cannot say that judges are politicians or absolute legalists, they are more like pragmatist, real pragmatists; they think about the consequences of their decisions in terms of social consequences and ensuring the continuing respect for the law. since they’re still limited humans, they’re prone to be influenced by bias, personality traits, life experience, and yes, sometime political bent.
Allow me to put myself in the judge's shoes for a second:
Ok, 1 min mediation; inhale, exhale, phew. what do we have here? let's see: I am a generalist so I need to think about everything super fast and to the best of my knowledge. Where does public opinion stand on this, what does my experience tell me? Should I lean into that? does my gender has any say here? Man, I probably have deep seated biases and beliefs that I am not aware of that are bound to influence my decision, but I wanna do good. I truly do. It’s true that a republican appointed me; or was it a democrat? exactly, that has nothing to do with my decision, right? right? I feel like I already have an intuition about how we should adjudicate this, I need to weigh everything we have here against that and see. But, what if that’s the wrong way to go about it and my intuition succeeds because it was stronger than the facts, policy implications, and future of law. Sorry Bayes, but I can't put all my eggs in your basket. Besides, I want the other judges to respect me, so if the issue doesn’t absolutely warrant dissent, I won’t dissent. Should I dissent, the case will become more popular than ever. Do I want that? It’s really crucial that I show deference to the continuation of the institution of law too. okay, I guess I am ready to make a semblance of a decision now. hey-- my talented law clerk who writes all of my opinions so I have some leisure to think-- show me what you wrote.
Inescapably, there are more factors at play here, but this roughly how judges think under pressure. In short, you cannot say that judges are politicians or absolute legalists, they are more like pragmatist, real pragmatists; they think about the consequences of their decisions in terms of social consequences and ensuring the continuing respect for the law. since they’re still limited humans, they’re prone to be influenced by bias, personality traits, life experience, and yes, sometime political bent.
November 9, 2008
This passage from page 287 is insightful, and although I disagree with Posner I appreciate his position. While referring to the Constitutionality of Federal laws and actions can be used to advance a particular partisan agenda (think about every time somebody has mentioned their first amendment right), that doesn't prevent somebody who believes in the rule of law to consistently cite the Constitution. With all due respect to the legalists in the Bush administration (none), they're as wrong as the host of other politicians who have falsely sworn to uphold the Constitution.
The legalist implements his approach by literal (textualist) or historical (originalist) interpretations of statutes and the Constitution, and such interpretation, though nominally referrable back to elected officials, often has the effect of curtailing the powers of the nonjudicial branches. Think of what a literal interpretation of the commerce clause, of the First Amendment's free-speech clause, or of the Second Amendment's right to bear arms would do to the government's ability to keep military secrets, punish criminal solicitation, regulate transportation or communications that do not cross state lines or national boundaries, and forbid the sale of heavy weaponry to private persons. The Constitution of 1787 envisioned a much smaller federal government than we now have, and legalist techniques could be used to carve the government back to its eighteenth-century dimensions. Legalists of the "Constitution in Exile" school think that the Constitution as a whole is greatly underenforced, while legalists in the Bush Administration think that article II (presidential power) is greatly underenforced.
The legalist implements his approach by literal (textualist) or historical (originalist) interpretations of statutes and the Constitution, and such interpretation, though nominally referrable back to elected officials, often has the effect of curtailing the powers of the nonjudicial branches. Think of what a literal interpretation of the commerce clause, of the First Amendment's free-speech clause, or of the Second Amendment's right to bear arms would do to the government's ability to keep military secrets, punish criminal solicitation, regulate transportation or communications that do not cross state lines or national boundaries, and forbid the sale of heavy weaponry to private persons. The Constitution of 1787 envisioned a much smaller federal government than we now have, and legalist techniques could be used to carve the government back to its eighteenth-century dimensions. Legalists of the "Constitution in Exile" school think that the Constitution as a whole is greatly underenforced, while legalists in the Bush Administration think that article II (presidential power) is greatly underenforced.
January 13, 2009
I might be a bit more pre-disposed to the material than were I, say, an electrical engineer, hence that might have something to do with the rating. But he's a fantastic writer, the material is very articulate, and yet straightforward. nutshell observations: Posner discusses at length the inherent limitation of textualism/originalism as a legal/constitutional theory in a non-civil law system (that is, our statutes are not comprehensive to provide for every conceivable situation, it is thus left to the judiciary to fill in the blanks, so to speak). He has always been a legal pragmatist, but he also highlights the weaknesses of other leading pragmatist's own arguments for their theories. Indirectly then, and maybe unintentionally (or intentionally), he postures himself as a leading voice of current legal pragmatism. Theories aside, this is a fantastic book for fresh/young lawyers, as it touches on judicial deliberation and the need to improve relations between the bench and bar and the bench and academy. As technical as these observations sound, maybe this is a bad sign, but I was engrossed.
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February 12, 2016I decided to read this book mostly because Posner is well known and also because the book is in the Atlanta Fulton County Public Library. The book is not necessarily easy to follow and perhaps didn't really answer very well for me the question about how judges think. I was interested to see that Posner appears to be somewhat conservative. He critiques the Supreme Court Justices and appears to be saying that their decisions are based more on ideology rather than necessarily completely rational basis the way they present themselves. I think his best chapter is the one entitled "Judges Are Not Law Professors" in which he discusses among other things the history of Rumsfield v. FAIR (2006). This was a case where some law schools refused to permit the armed services to recruit on campus due to discrimination against homosexuals. In response Congress passed the Solomon amendment which denies federal funding to schools that do not allow students access to military recruiting. Posner has a good discussion of this (mostly critical of law professors).
May 29, 2009
Posner, a federal judge, wrote this book outlining how he thinks judges make decisions - a process he dubs 'pragmatism.' They don't actually base decisions on precedent or even on the Constitution or the statute much of the time, he claims, they make political judgments instead and then look for evidence to justify their decisions. That may be true, and I did learn a lot from this book, but I also got the sense that Posner is a bit full of himself and that grew tiring. No one would be interested in this book unless you are REALLY into the judiciary.
July 23, 2008
This is Posner at his best - engaging, informative, a quick read. He takes on the heavyweights in the field, and fellow members of the judiciary - in particular Justice Kennedy. It's a realistic account of aspects of the judging process.
September 11, 2010
Very interesting book about the way judges work and think. It was a little above my head in parts, and I think I'd like to read it again down the road one day. It took a while to read, as it didn't exactly flow well from point to point. But it definitely made me think.
November 22, 2014
I'm a liberal, Posner isn't. Yet it's difficult not to be swayed by such a thoughtful and intelligent person. I respect the man because he's an open book, with no hidden agenda. And he's an intellectual powerhouse. I'll read anything he publishes.
May 29, 2015
This is an extremely dense but very interesting summary of several various judicial styles, best taken in short chunks. It would perhaps be less interesting to those who aren't legal wonks, but if you have even a passing interest in how federal courts work, this is worth a read.
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September 23, 2010How Judges Think by Richard A. Posner (2008)
June 14, 2013
under-paid, but under-worked
August 7, 2014
A very interesting analysis of how judges think.
August 9, 2015
Possibly too complex for undergrads...maybe a chapter could be assigned.
March 31, 2017
More of an apologetics for wide judicial interpretation than a defense of it. If you support the 'living constitution' approach, you will find support for your position; if you dummy, nothing he says will change your mind. Ultimately, a poor defense of judicial tyranny.
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