How Judges Think by Harvard University Press

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How Judges Think by Harvard University Press Judges Rule: Are American Judges Political or Pragmatic?
Richard Posner, one of America's leading Legal Scholars, has breathtaking range: from Aging (Aging and Old Age) and Intelligence (Uncertain Shield: The U.S. Intelligence System in the Throes of Reform (Hoover Studies in Politics, Economics, and Society)) to Sex (Sex and Reason) and Terrorism (Countering Terrorism: Blurred Focus, Halting Steps). In this book Posner returns to one of the main themes of his scholarship - the failure of Formalist judging and the possibility of Pragmatism as an alternative. This is a recurring theme for Posner (see my reviews of "Sex and Reason" and Overcoming Law, and especially Posner's The Problematics of Moral and Legal Theory) and one on which he can speak from experience: He's a Judge of the US Court of Appeal for the 7th Circuit. Posner's book is a collection of articles published elsewhere; Its main theme is constructed from Law articles, a survey of the Supreme Court's 2004 term, various book reviews, and even, I think, Blog posts. The end product offers fascinating discussions of many topics, but it feels somewhat disjoint, as if Posner was constantly being sidetracked, albeit in interesting directions. Posner's main argument, one that would find no disagreement from me, is that American Judges are not Formalists. Formalists argue that legal decisions are (or should be) made in an algorithmic fashion - that there is only one right answer, and that it is independent of the Judge's personality and politics. That judicial decisions are not Formally determinable, at least in the most interesting cases, has been argued for centuries. Posner demolishes some of the tropes of Formalism old ("reasoning by analogy" pp. 181-190) and new-ish ("Originalism" pp. 343-345) and offers statistical evidence that US judges are not Formalist: the opinions of judges appointed by Democratic administrations differ from those of Republican appointed ones. But if judges are not legalistic, what are they? Are there only two choices - legalistic (unfeasible in many cases) or political (As Justice Scalia suggests in an article titled "Originalism - the Lesser Evil")? In this and other writing, Posner offers an alternative: Pragmatism. Pragmatism can help constrain Judges and decide cases in ways that would not seem to be political. A Posnerian Pragmatist should judge cases in which the Formalist apparatus breaks down in three ways: First, in some fields there exists a "limited... field-specific ideological consensus" (p. 373). In contracts and torts, property law and bankruptcy law - the traditional domains of the Common Law - the basic ideological issues are agreed upon. Therefore judges can use instrumental reasoning as to how best achieve agreed upon goals. Second, in areas upon which there is little consensus, such as Constitutional Law, the Posnerian Judge would be a minimalist. Subjecting oneself to Oliver Wendell Holmes's " "Puke Test" - a statue is unconstitutional only if it makes you want to throw up... a conviction of error is not enough - there must be revulsion" (p. 288). Judges would be mostly deferential to the "political" branches. The third, most interesting element of Posner's Jurisprudence is the reliance on Social Science. Posner believes that by immersing oneself in the facts of the case, and in relevant scientific knowledge, one can sometimes transcend the personal dimension of the decision. Essentially, the social sciences can help move an issue from the second category - that of contested moral principles - to the first, thus achieving an "apolitical" or Pragmatic, ruling. Pragmatism is not a cure all for legal dilemmas; They can have more than one pragmatic answer. Take the Kelo case (Kelo v. City of New London, pp. 314-320). New London used its power of "eminent domain", forcing landowners to sell land to it at market prices, and then gave the land for public contractors to use in an urban development project. This appropriation of private property was understandably unpopular among owners, who probably estimated the land at a higher value than its market value - otherwise, they would have sold it willingly. The economic justification for thus appropriating land is the `hold out' problem - sometimes, particular lots are necessary for a project. If they are, the owners, facing no competition, can hold out for a very high price. The power of "eminent domain" is thus an anti-monopoly device. One pragmatic solution to the case would have been asking whether the situation in Kelo was a `hold out' situation. If so, justification existed for the use of the eminent domain. If not, its use was essentially subsidizing private contractors at the expense of the owners. Instead of thus resolving the case, the Supreme Court refused to intervene in a political issue. That result, Posner reports, was a pragmatic triumph also. By refusing to defend owners against government action, the Court pushed owners to the public sphere, where they can fight the government's power "The responses of Congress and the states will constitute a series of social experiments from which much will be learned about the proper limits on eminent domain" (p. 319). Is Posner's prognosis, limited as it is, only normative or also positive? Are US Judges really pragmatic? I think that, unfortunately, they are not. First, the Justices in the Kelo case showed little interest in the Social science behind the use of eminent domain. Application of social sciences in other cases is faulty and undisciplined (pp. 297-299). All the current Justices had been Court of Appeal Judges - did they forget their pragmatism when promoted? The Justices are not a representative sample of US judges, but is there any reason to think they are less empirically inclined? Indeed, despite Posner's assurance that "Judges are curious about [social reality]... they want the lawyers to help them dig below the semantic surface." (p. 228), I wonder why we can't see that in practice. Law is a highly competitive business. If social science would give lawyers an edge in winning cases, one would think competition would teach lawyers how to use it. Factual, "Brandeis", briefs have been around... well, since Brandeis. Why aren't they making more of an effect? My guess is that Posner is still an anomaly. Most American judges are not Pragmatists. Maybe we will "overcome law" some day, but we aren't there yet.
How Judges Think by Harvard University Press Posner and Judges
Posner and judges Crispulo Marmolejo -- Universidad Santo Tomas, Chile Amazon.com placed in my hands the last book by Richard Posner, called "How Judges Think". Richard Posner is one of the most famous public intellectuals of the United States, who is enjoying years of global reputation as a pioneer of the movement Law and Economics, Judge of the Court of Appeals for the Seventh Circuit and Professor at the University of Chicago, having published more 30 books and hundreds of articles specialized. It's hard to find an author who combines excellence in the categories of lawyer, economist, academic and Judge Posner as those exhibits. His latest book is a stark analysis of the judicial function and surely will make famous the 9 theories of judicial conduct that suggests there, which include the prospect sociological, psychological, practical, organizational and phenomenological. A rational approach to judicial functions assigns judges the role of providers judicial allocators of property rights, sanctions and custodians of various freedoms. Judges up - according to Posner- a labor market specific, highly regulated and classified, sensitive to many externalities in which it operates, at least in legal systems in Latin America- an excessive legalistic environment. They are subjected to the pressure of time to resolve cases, forcing them to decide on multiple subjects and trial and face criticism from civil society, scholars and politicians, which increases a natural propensity to inefficiency in the assignment of rights, eventually corrected by higher Courts. The economic theory of judicial conduct, according to this famous jurist, analyzes the judges acting as maximizers their benefits, as their own job stability and projecting climb hierarchy. In his peculiar style, Richard Posner argues that the excessive legalism tends to stifle the judicial function, restricting creativity and novel approaches suffocating, allowing lawyers, legislators and non innovators scholars tend to exercise only old arguments, blocking new realities interpretative and denying a complete understanding of technical realities that globalization imposes today with a very different approach to the rigid legalistic. According to Posner, the incentive to reduce that legalism, is the pragmatic analysis of court decisions, which often reveals how many false conflicts were brought into the procedural state apparatus, imposing a social cost and institutional benefiting. Finally, Richard Posner did a really good job again, explaining how is the current relationship between pragmatism and the role of judges
How Judges Think by Harvard University Press Product Description
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. (20080211)