|
How Judges Think | 
 enlarge | Author: Richard A. Posner
Publisher: Harvard University Press
Category: Book
List Price: $29.95
Buy New: $18.76
You Save: $11.19 (37%)
New (28) Used (5) from $18.37
Avg. Customer Rating:  9 reviews
Sales Rank: 14561
Media: Hardcover
Number Of Items: 1
Pages: 400
Shipping Weight (lbs): 1.6
Dimensions (in): 9.3 x 6.4 x 1.4
ISBN: 0674028201
Dewey Decimal Number: 347.012
EAN: 9780674028203
ASIN: 0674028201
Publication Date: April 30, 2008
Availability: Usually ships in 1-2 business days
Shipping: International shipping available
Condition: Brand New, Perfect Condition, Please allow 4-14 business days for delivery. 100% Money Back Guarantee, Over 1,000,000 customers served.
|
| Similar Items:
|
| Editorial Reviews:
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)
|
| Customer Reviews: Read 4 more reviews...
 Excellent Analysis But Needs Some Editing! July 11, 2008
I would agree with many of the reviewers that this is Posner at his finest. Although I tend to be skeptical of his articulation of pragmatism (especially via his selective use of economic theory), I found that this book really destroys the false binary that posits a clear split between activist and legalist judges.
Going beyond that, Posner also takes clear aim at the legal academy for mistaking the stated reasoning in legal opinions as the cause of a particular decision, rather than its effect. He makes it abundantly clear that legal scholars have lost connection with the judiciary and potentially the legal profession as a whole.
However, I can only give the four stars because the book desperately needed a good editor. Because the chapter are mostly previously published material, they are quite repetitive and probably make the book fifty pages longer than it needs to be. It would have been much better if Posner could have made the argument flow more coherently into a single argument instead of a dozen stand alone claims.
 Brlliant and fun analysis of how judges actually decide cases June 12, 2008
4 out of 4 found this review helpful
This man is *cold*. Fortunately for the reader, it is this icy wit that makes reading Posner's books such a joy. Watch how he rips into inconsistencies:
'In discussing a case that invalidated the exclusion of homosexuals from the military, Beatty approvingly remarks that the court "noted the lack of `concrete' and `actual or significant' evidence that allowing gay men to enlist in the armed forces would prejudice its morale, fighting power, or operational effectiveness in any way." He does not require that there be "concrete" and "actual or significant" evidence that homosexuals are harmed by the exclusion. Nor is he bothered by a lack of concreteness when he says that "laws that establish a broadcasting spectrum [must] guarantee that the full spectrum of opinion in the community will be heard." What is "the full spectrum" of opinion, and who is to decide? Must every lunatic have access to a broadcast studio? Beatty contends that government has a constitutional duty to subsidize religious schools but "may make funding conditional on religious schools agreeing to teach the same curriculum that is used in state-run schools." If the curriculum is identical, in what sense are they religious schools?' (internal footnotes omitted)
The point, here as throughout How Judges Think, is to drive a spear into the side of judicial and scholarly hypocrisy. The particular target here, Beatty, is no more or less hypocritical than the rest of us: judges and legal scholars, as much as anyone, pretend that their opinions are more than just opinions. Judges -- especially Supreme Court Justices -- have a fancy term for this, which we as Americans have come to sanctify as The One True Way Of Judging. The fancy term is `textualism' or `originalism' or (as Posner calls it) `legalism.' Legalism is meant to keep the judges out of judging: they're supposed to read the facts of the case, read the relevant precedents, read the text of any relevant statutes, maybe read the legislative history, then decide the case syllogistically. A judge becomes an automaton lacking independent will. This is supposed to keep politics out of the court, and keep us closer to the ideal of "a nation of laws, not men." The law, after all, shouldn't depend on who's enforcing it. This isn't the way actual judges or actual courts work, says Posner; he spends the next 350 pages crisply and efficiently taking down any number of legalist conceptions of judging. He replaces them with his own description of how judging actually works.
Judges also don't spend much time at all deliberating -- at least not in groups. A judge may be internally conflicted over a case, and at times he may actually change his mind on the basis of what others say. But not normally. Normally -- like poor Mr. Beatty, above -- he's either deliberately or subconsciously deploying judicial reasoning, or the appearance of judicial reasoning, in the service of what he already believes to be true. The ultimate source of judicial opinion is emotion: the race you were born into, the economic class you inhabit, whether you worked as a prosecutor or a defense attorney before you reached the Court.
If judges find sophisticated-sounding justifications for conclusions that they reached at the start, what's to stop them from running totally off the rails? Why can't a judge say whatever he wants? Here Posner walks through the range of `judges' -- from paid arbitrators through Federal appellate-court judges, all the way to the Supreme Court. An arbitrator has certain economic motivations: if he's known as thorough and unbiased, he'll get more business; if he tends to land on compromises that make both sides happy, he'll get still more. District court judges are subject to review by the appellate courts. Federal appellate judges have life tenure, insulating them from public opinion -- but they're subject to review by the Supreme Court. Supreme Court Justices themselves have a cushy job with limited caseloads and no possibility of review. So where do Supreme Court justices get *their* constraints? The public: if the Court veers too far into cloud cuckoo land, it can expect that the people will revolt and clamor for overriding legislation. The Supreme Court still has constraints.
Judges are "constrained pragmatists," in Posner's terminology. They must choose among conflicting interpretations of the common-law and statute history; a pragmatist chooses by considering the consequences of each interpretation in the light of the law's *intent*, if not its wording. A pragmatic judge doesn't get overly bogged down in the words of the law, when those words are an imperfect guide to what the law was supposed to achieve. This sounds similar to objectives-based regulation: specify the outcome and the intent, and focus less on the implementation. The realization behind this is that society changes quickly, and laws that fixate on the present moment's circumstances will quickly become obsolete.
This was the weakest part of Posner's argument: legislation, says Posner, moves more slowly than the courts do, so it's natural to place some of the burden of its interpretation on the courts. The process of amending the Constitution is tortuous, but Posner never makes it clear why this is a bad thing, or whether legislators actually desire to make the judicial branch a second branch of execution. Posner's argument isn't absurd. Even pragmatist judges operate under constraints, after all: if they strike down perfectly constitutional legislation, remedies up to impeachment are theoretically available. And the public has been trained to be on the lookout for `activist judges'. But to base a large part of the argument for pragmatism on a bare assertion that "it works out better that way for everyone" is odd.
His analyses of how a pragmatist would resolve any number of cases are fascinating. Take the Kelo case, for instance, which allowed the city of New London, Connecticut to seize land by eminent domain for private development. A pragmatist assesses a claim of eminent domain by looking at the original intent of the law, and the economic consequences of granting or withholding the seizure right. The original intent, says Posner, was to prevent individual people from holding a big public-works project hostage: if I'm building a several-thousand-mile-long road, everyone in its path knows that their cooperation is vital. They have, in other words, something like monopoly power, and they can demand exorbitant sale prices for their land. If there's no danger of "holdouts," as these are called, there's no reason to grant the state eminent domain. Moreover, a pragmatist would examine the consequences of granting eminent domain in these cases, would realize that the market is better able to assign just compensation to land sales than the state itself is, and would in effect hand the case over to the market for resolution.
A pragmatist judge, it seems to me, is expected to exercise remarkable foresight. Not only must he know enough about the common and statute law to genuflect appropriately at the law's majesty, but now he must also be able to guess the long-term consequences of a particular taking. This means he must be rather thoroughly educated in economics and statistics. Posner might reply here that it's six of one, half-dozen of another: a non-pragmatist judge only has to convert his gut feelings into the language of precedent, but the outcome of this simpler process is decidedly worse than what a pragmatist -- with his wider scope -- comes up with. If I have Posner right, there's little evidence for this claim in How Judges Think. Indeed, Posner repeatedly critiques judges for a lack of interest or skill in the exact sciences. So what's to make us think that an unschooled pragmatist judge would come up with better decisions overall? Maybe "unschooled pragmatist" is a contradiction in terms?
This reliance on economics, statistics, and science makes it all the more jarring when Posner throws down bare assertions -- as, for instance, when he asserts (p. 306) that the "total misery of the wrongly convicted was not lessened" when the Court increased the rights of criminal defendants in the '60's. Total misery decreases if the average wrongly convicted defendant spends less time in jail, or if fewer people are wrongly convicted to begin with. Posner asserts (with evidence) that defendants spent more time in jail after the '60's, in part because of a legislative backlash against the courts. (It could also be because violent crime increased. Posner himself doesn't engage in much convincing heavy-duty statistical analysis, though he cites plenty.) For his claim to hold, he has to show that the probability of wrongful conviction didn't fall enough to compensate for increased jail time. This he does not do. In general, the pretensions of economists invite skepticism during their falls from the empiricist wagon.
One final note from Posner that I found especially interesting: academics, he says, have grown increasingly distant from the actual practice of judging. One consequence is that law students learn the very artificial academic view of how judicial decisions are made. Law students, in a word, are trained to be legalists. They come to expect that judges are the automata they read about in class. Students learn that if they want to convince judges of anything, all they need to do is read a long litany of precedent; the judge will be forced, through logic alone, to accept their conclusions. They import this conceit into the courtroom and get nowhere with it. If legal academia were more in line with how judging actually worked, law students would learn to address judges pragmatically. As it is, even a decorated legal scholar like Larry Lessig -- a man who clerked for Scalia and Posner, in fact -- didn't understand quite how to talk to Supremes:
"Here was a case that pitted all the money in the world against *reasoning*. And here was the last naive law professor, scouring the pages, looking for reasoning."
Posner the Judge on How Judges Think June 7, 2008
3 out of 3 found this review helpful
I found this to be a very significant volume by Judge Posner, since he is writing on several of his strongest areas--legal philosophy, American judges, and theories of judicial decision-making. As the title indicates, this is an enormous topic and even to cover all of Posner's topics in a brief review is impossible. But this is what he is up to:
First, he wants to review existing explanatory theories of judicial behavior: the attitudinal; sociological; economic; organizational; pragmatic; legalistic; and policy choice. Posner here seeks to demonstrate that no one of these theories can wholly explain judicial behavior, and that some other approach he suggests is better suited to do the job.
Posner is quite a creative fellow, extremely well versed in a variety of literatures in addition to the legal. For example, he discusses judges as workers in the judicial system, quite an innovative approach. Next he focuses on judges as "occasional legislators" and what ideology a legislating judge employs. Unconscious preconceptions and intuitions are major topics in this discussion. Posner then shifts to what external and internal constraints limit judicial freedom of decisional action, including precedent, tenure and salary issues, and internal constraints (what we political scientists refer to as "role theory" and small group analysis). Along the way he takes some effective potshots at folks such as LLoyd Weinreib (who argues analogy as the key to legal analysis), the legal process school, "neutral principles" and the Scalia approach to constitutional interpretation. Interestingly enough, law professors are not a major constraint, because they have segregated themselves out of studying and interacting with judges. This is one of the most perceptive chapters in the book.
By chapter 9, Posner is zeroing in on one of his favorite topics--pragmatic adjudication. He argues that pragmatic policy concerns often are the best device for explaining judicial actions because Posner believes these considerations should guide judges. Of course, Judge Posner has written literally reams on this topic, but I found this one of his best discussions. Finally, Posner targets the Supreme Court, "a political court" as he terms it. The limited impact the Court has in policing the Courts of Appeals constitutes an interesting theme here. Posner follows this up with a fine review of Justice Breyer's "Active Libery" and a fascinating discussion of what he terms "judicial cosmopolitanism," or how much foreign legal concepts should play a role in American judicial decision making. This chapter includes highly critical discussions of Beatty's "Ultimate Rule of Law" and Israeli CJ Aharon Barak's "The Judge in a Democracy." Posner can throw critical right jabs with the best of them.
This is a very long book (at around 377 pages). But is it packed with thought stimulating material and arguments, as well as exceptionally useful bibliographic references in the notes (which are actually at the foot of each page). Anyone interested in American judges and what they do, and why they do it, would consider this volume as essential reading.
 How Judges Think May 28, 2008
5 out of 19 found this review helpful
My god, what a boring book this was. It was written like a law review article and nothing is more boring than a law review article (unless you are doing research). I was hoping for some down to earth conversation about how judges think, something that was an easy read. This was NOT an easy read was just BORING. I didn't even finish it. It was like a lecture on paper.
Posner' most important book for the general public May 25, 2008
1 out of 7 found this review helpful
This may be Posner's most important book; certainly the most likely of his books to be read across the political spectrum. Whoever (Obama) wins (Obama) the next election (Obama) would do well to read this before appointing anyone to the Court of Appeals or the Supreme Court.
Truly well written, well thought out, and well worth reading, especially by those of us on the left.
|
|
|
Powered by Associate-O-Matic
| |
