How Judges Think

Richard A. Posner

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English

JOHN WILEY & SONS
01 May 2010

Law; Jurisprudence & philosophy of law; Courts & procedure

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.

By: Richard A. Posner
Imprint: JOHN WILEY & SONS
Country of Publication: United States
Dimensions: Height: 235mm, Width: 156mm, Spine: 26mm
Weight: 567g
ISBN: 9780674048065
ISBN 10: 0674048067
Pages: 400
Publication Date: 01 May 2010
Audience: College/higher education , Professional and scholarly , Primary , Undergraduate
Format: Other merchandise
Publisher's Status: Active

* Introduction Part One: The Basic Model * Nine Theories of Judicial Behavior * The Judge as Labor-Market Participant * The Judge as Occasional Legislator * The Mind of the Legislating Judge Part Two: The Model Elaborated * The Judicial Environment: External Constraints on Judging * Altering the Environment: Tenure and Salary Issues * Judicial Method: Internal Constraints on Judging * Judges Are Not Law Professors * Is Pragmatic Adjudication Inescapable? Part Three: Justices * The Supreme Court Is a Political Court * Comprehensive Constitutional Theories * Judicial Cosmopolitanism * Conclusion * Acknowledgments * Index

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.

Reviews for How Judges Think

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 20080211 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 on the Web 20080709

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How Judges Think

Richard A. Posner

$47.95

Other merchandise

Reviews for How Judges Think

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