How Judges Think

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 case

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 straightfA 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.

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    Richard A. Posner
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    Published :2018-03-08T07:39:43+00:00

One thought on “How Judges Think

  1. UChicagoLaw

    I 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 [...]

  2. Robert Wechsler

    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 a [...]

  3. Vladimir

    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 [...]

  4. Justin

    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 t [...]

  5. SallyStenger

    I 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 ba [...]

  6. Bethany

    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 [...]

  7. David Cowhig

    An inside view of the judge's art -- more than an art that the legalists would allow. Critiques of some recent judges and discussion of how law professors and judges don't understand one another due to different professional environments and experiences. Yet this gap needs to be closed somehow so that the next generations of lawyers will get a better education in the law.

  8. Mary Ann McGrail

    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.

  9. Giuseppe

    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.

  10. Daniel

    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.

  11. Andrew

    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.

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