- Hardcover: 400 pages
- Publisher: Harvard University Press (April 30, 2008)
- Language: English
- ISBN-10: 0674028201
- ISBN-13: 978-0674028203
- Product Dimensions: 6 x 0.9 x 9.2 inches
- Shipping Weight: 1.6 pounds
- Average Customer Review: 29 customer reviews
- Amazon Best Sellers Rank: #806,265 in Books (See Top 100 in Books)
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How Judges Think
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From Publishers Weekly
Posner is unique in the world of American jurisprudence, a highly regarded U.S. appellate judge and a prolific and controversial writer on legal philosophy (The Little Book of Plagiarism). Opinionated, sarcastic and argumentative as ever, Posner is happy to weigh in not only on how judges think, but how he thinks they should think. When sticking to explaining the nine intellectual approaches to judging that he identifies, and to the gap between legal academics and judges, and his well-formulated pragmatic approach to judging, Posner is insightful, accessible, often funny and a model of clarity. When he charges off into longstanding arguments with fellow legal theorists (liberal commentator Ronald Dworkin, for one) or examines doctrinal discrepancies in the opinions of Supreme Court justices, he writes for a far more limited audience. For the record, although Justice Scalia is a favorite target, none of the Supreme Court nine escapes Posner's lethally sharp pen. Posner's two major points—that to a great extent judges make decisions based not on theory but on who they are, their gender, education, class and experiences, and that the Supreme Court is a political court regardless of what theory of constitutional interpretation justices claim—are well worthwhile and deeply rooted in common sense and experience. (Apr.)
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Posner is unique in the world of American jurisprudence, a highly regarded U.S. appellate judge and a prolific and controversial writer on legal philosophy. Opinionated, sarcastic and argumentative as ever, Posner is happy to weigh in not only on how judges think, but how he thinks they should think. When sticking to explaining the nine intellectual approaches to judging that he identifies, and to the gap between legal academics and judges, and his well-formulated pragmatic approach to judging, Posner is insightful, accessible, often funny and a model of clarity. (Publishers Weekly 2008-02-11)
Posner's latest book, How Judges Think, is important, if only because it's Posner looking at his own profession from the inside. Two of the chapters, "Judges Are Not Law Professors" and "Is Pragmatic Adjudication Inescapable?," are worth the price of admission by themselves. The book can be read as one long screed against the jurisprudence of Supreme Court Justice Antonin Scalia, and stands as a refutation to those who believe the category of conservative can lazily be applied to a mind as independent as Posner's.
--Barry Gewen (New York Times online 2008-07-09)
A prolific and brilliant writer, Posner's How Judges Think is perhaps his most illuminating work for its profound, and sometimes polemical, insights into the judicial process...Judge Posner's examination of the issues is thorough, scholarly and riveting. He has written an important book--a must read not just for lawyers, but also for anyone who wants to understand how the inscrutable, and sometimes oracular, process of judging really works.
--James D. Zirin (Forbes.com 2010-06-08)
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This is the third book by Posner that I have read. All three books were good. Two –including this one—are superb, models of engaged scholarship. (If you haven’t read anything by him before, I recommend you start with Reflections on Judging, 2013.) Posner is It.
Arguing against legalism and various forms of moralism, Posner argues for a restrained pragmatic approach to the law, in line with his models on the bench, especially Holmes (“The life of the law has not been logic; it has been experience”), who accepted that the written law only went so far and that beyond that point, the prudent judge crossed from enforcing pre-existing, stringent rules to making new law. Law in action is imprecise but not amorphous. “In our system the law as it is enforced in courts is created by judges, using legal propositions as raw materials.” He does not argue that a judge can make any law he wants. Rather, he argues that in any but the most constrained case, the judge must choose among courses of action that are not automatically (because the law tells the judge exactly what to do) clean --or should I say clear? From this simple premise –that judges are de facto legislators—Posner moves to a critique of many, maybe most academic commentators on the law, and a scathing critique of what is taught in even the best law schools in our country. He has, is in other books, harsh words to say about Justice Scalia’s supposed originalism, which he finds inadequate and self-deceiving –even Scalia admitted that he moved beyond it at times.
If I were a lawyer, I would read this book NOW.
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.