- Hardcover: 400 pages
- Publisher: Harvard University Press (October 7, 2013)
- Language: English
- ISBN-10: 0674725085
- ISBN-13: 978-0674725089
- Product Dimensions: 6 x 1.3 x 9.3 inches
- Shipping Weight: 1.8 pounds (View shipping rates and policies)
- Average Customer Review: 13 customer reviews
- Amazon Best Sellers Rank: #366,797 in Books (See Top 100 in Books)
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Reflections on Judging
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"Enlightenment Now: The Case for Reason, Science, Humanism, and Progress"
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Reflections on Judging…is about what judges should do when confronted with complexity. Like the rest of us, judges face an increasingly bewildering world, marked by daily advances in such areas as social media, the sciences and globalization. Unlike the rest of us, judges must make decisions that enforce their understanding―or misunderstanding―of that complexity onto millions… [Posner’s] willingness to speak to his readers―judges or otherwise―as a jurist with three decades of experience is a strength of this book… Reflections on Judging is spangled with legal cases in which Posner, faced with disorder, triumphantly cuts through the noise… In Richard A. Posner, our generation has its Learned Hand, its Henry Friendly. In complex times, we can take comfort in the simple fact of his existence. (Kenji Yoshino New York Times Book Review 2013-11-10)
Posner is a precise, erudite writer with a strong point of view enriched by specific examples accumulated over the course of three decades of professional experience and observation… Posner's insights will resonate with jurists and those who practice before them. His book is highly recommended for those in the legal profession and other court watchers. (Joan Pedzich Library Journal (starred review) 2013-09-01)
A deep and thought-provoking collection of insightful analyses of various aspects of being a judge, told from an insider's perspective, but with appropriate and equally thoughtful caveats about the advantages and disadvantages of an insider's account. (Frederick Schauer, University of Virginia School of Law)
About the Author
Richard A. Posner is Circuit Judge, the United States Court of Appeals for the Seventh Circuit, and a senior lecturer at the University of Chicago Law School.
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Judge Posner invites lawyers and judges to tackle the increased complexity of the law in at least three ways. First, he urges lawyers and judges to use pictures and simplify their briefs and opinions. For example, he writes that "seeing a case makes it come alive to judges," yet "[l]awyers' lack of a visual sense . . . is a striking professional deformity. I do not understand it. Information can often be presented more efficiently in pictorial than verbal form." He also tells lawyers and judges to use "coloring book" facts, such as stories or other background material (even if outside the record) to help the reader understand "the technological or commercial setting of a case."
Second, despite his reputation as a legal theorist, Judge Posner has practical tips to improve jury trials based on his experiences from serving as a trial judge. Among other things, he advocates time limits on trials and recommends that judges use more frequently their power to appoint neutral experts.
Third, Judge Posner presents his "Posner model" of avoiding excessive reliance on junior lawyers or clerks preparing briefs and opinions. He correctly observes that the growth of associates in law firms and law clerks in the federal courts has contributed to the unnecessary lengthening of briefs and opinions. He goes as far as to present an opinion from a federal appeals court that takes up several pages of text and compares his version, which takes a little more than a page. The difference is striking.
In short, Judge Posner's "Reflections" should help lawyers and judges to argue and rule more effectively and with more style and more professional satisfaction. Hopefully, in the process, this will improve the public's confidence in the judicial system.
First, to illustrate how one can be selected for the federal judiciary, he devotes the introductory chapter to a brief autobiography. He is particularly interested in suggesting issues that new judges should consider as they ascend the bench. He also introduces one of his major concerns: increasing technical "complexity" that faces judges as they adjudicate challenging cases.
To fill in background, Posner next discusses the evolution of the federal judiciary. He raises here several of his fundamental concerns: excessive growth of staff; should law clerks on the appellate level be assigned initial drafting responsibility for opinions (a vehement no!); and the adoption of basic managerial tools to structure judicial caseloads.
A third chapter is devoted to his key concern of "complexity." I found this very long chapter not to be particularly effective. He does a better and shorter job on this in his Introduction to the book. One important point that does emerge is that courts may generate their own complexity by deciding cases in a "formalistic" way rather than employing a realistic approach. This reflects Posner's recent shift toward pragmatism in his writings. He develops this theme in depth in his chapter four. Basically instead of conventional legal analysis, Posner wants judges to employ more practical sense and concern about the consequences of their decisions. I think this is one of his most crucial points and this chapter bears careful reading.
Posner argues that appellate records are often insufficient. Surprisingly, to me at least, he advocates that appellate judges freely utilize Google research to fill out inadequate factual records. More use should be made of maps and pictures in opinions to help clarify decisions. Counsel who argue appellate cases should find this chapter of particular interest.
A most interesting chapter is on "coping strategies." These are techniques appellate judges can use to avoid resolving complexities they face in cases. Judicial self-restraint comes in for a challenging working over by Posner. A particularly rich chapter discusses the very concept of interpretation. His target here is (not for the first time) Justice Scalia's originalism, as discussed in depth in his book (co-authored with Brian Gardner) "Reading Law." By the time his extensive analysis is concluded, its brutal efficiency leaves little of the Scalia approach still standing. This is as fine an example of masterful legal analysis as I have seen. Given all the fussing over how to interpret statutes and the Constitution, this chapter makes a significant contribution to bringing some clarity to this debate.
Several more chapters are directed at the appellate process. Tips on opinion writing and appellate advocacy comprise chapter 8. In the next chapter, Posner recounts why he recommends that appellate judges without trial experience spend some time presiding (as they may) over district court trials. Chapter 10 discusses additional recommendations to improve the appellate process. A conclusion raps it all up.
So, Posner covers a large amount of ground in 370 pages. This is one of those books where reading the footnotes (which are actually footnotes) is essential. Sometimes the judge does go on a bit too long in making a point (witness the complexity chapter); but if this is "fat" I am all for it. One of the most stimulating books one can read on the federal appellate judiciary, which what with the recent filibuster modifications, is as always heating up as an issue.