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The Federal Courts: Challenge and Reform, Revised Edition
Excellent Book
- GenresLaw
430 pages, Paperback
First published November 1, 1996
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About the author
Richard A. Posner
130 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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Displaying 1 of 1 review
August 2, 2010
Judge Posner reviews the causes of the increased caseload in the federal court system after 1960 and the effects of this tripling of cases. He argues that the quality of court decisions was not lessened during this era due to the increased usage of law clerks, the increase of summary judgments based upon standardized and reasonable rules, and the increase in unpublished decisions in cases that have a small chance of being used as precedent in future cases. Judge Posner warns, however, that the court system is not infinitely elastic and that future increases may force a fundamental reconfiguration of the courts.
Posner blames much of the increase in cases on the propensity of the Warren and Burger courts to hand out rights that individuals and corporations held against the federal government. First, these rights created further uncertainty in law, which naturally brings about more cases. Second, these cases will bring an unlimited number of claims against the federal government that the federal court system will have to adjudicate. Finally, these rights encouraged indigent prisoners to file endless appeals that the federal courts were forced to wade through.
Although the modernizations of the courts allowed them to keep pace with the heavy increase in caseload, Posner feels that it is necessary to suggest several reforms to help decrease caseloads. He argues for increasing filing fees to up the ante, limiting diversity jurisdiction, and increasing the usage of statistics to track the workload of judges. He mostly argues against using specialized courts, as they would be more likely to identify with federal legislation in their specialty and would not act as a check against the other branches. One sizable exception is tax law, since specialized judges might be able to sniff out subtle violations of tax law that generalist judges would miss. He examines the possibilities of reducing the federal caseload by shifting more cases to state courts and through the extension of judicial self-restraint, but he feels that both of these options would hurt the courts' role as a check to the other branches. Posner ends the book with a call to judges to act with more humility and consider how their individualistic actions reflect upon the institution of the federal court system.
Posner's book is a must-read for those who are interested in the workings of the federal court system, but his argument suffers from a few weaknesses. First, he identifies the possible need for a systemic reform and identifies a few possibilities, but refuses to endorse any of them. Second, Posner appears to have an obsession with the problem of criminal appeals, even though his workload statistics show that most of these cases put little workload on the courts. Finally, the book suffers from some of the limitations of economic legal models, but the contributions and insights of the economic models far outweigh the problems. Overall, this book provides a new insight on the problem of caseload but comes short of providing a long-term solution that Posner is willing to support.
Posner blames much of the increase in cases on the propensity of the Warren and Burger courts to hand out rights that individuals and corporations held against the federal government. First, these rights created further uncertainty in law, which naturally brings about more cases. Second, these cases will bring an unlimited number of claims against the federal government that the federal court system will have to adjudicate. Finally, these rights encouraged indigent prisoners to file endless appeals that the federal courts were forced to wade through.
Although the modernizations of the courts allowed them to keep pace with the heavy increase in caseload, Posner feels that it is necessary to suggest several reforms to help decrease caseloads. He argues for increasing filing fees to up the ante, limiting diversity jurisdiction, and increasing the usage of statistics to track the workload of judges. He mostly argues against using specialized courts, as they would be more likely to identify with federal legislation in their specialty and would not act as a check against the other branches. One sizable exception is tax law, since specialized judges might be able to sniff out subtle violations of tax law that generalist judges would miss. He examines the possibilities of reducing the federal caseload by shifting more cases to state courts and through the extension of judicial self-restraint, but he feels that both of these options would hurt the courts' role as a check to the other branches. Posner ends the book with a call to judges to act with more humility and consider how their individualistic actions reflect upon the institution of the federal court system.
Posner's book is a must-read for those who are interested in the workings of the federal court system, but his argument suffers from a few weaknesses. First, he identifies the possible need for a systemic reform and identifies a few possibilities, but refuses to endorse any of them. Second, Posner appears to have an obsession with the problem of criminal appeals, even though his workload statistics show that most of these cases put little workload on the courts. Finally, the book suffers from some of the limitations of economic legal models, but the contributions and insights of the economic models far outweigh the problems. Overall, this book provides a new insight on the problem of caseload but comes short of providing a long-term solution that Posner is willing to support.
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