How Judges Think

by Richard A. Posner

Overview

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.

Product Details

ISBN-13:	9780674048065
Publisher:	Harvard University Press
Publication date:	05/01/2010
Pages:	400
Sales rank:	289,886
Product dimensions:	6.10(w) x 9.20(h) x 1.00(d)

About the Author

Richard A. Posner retired as a judge of the United States Court of Appeals for the Seventh Circuit in 2017. He was previously a senior lecturer at the University of Chicago Law School.

Table of Contents

• Introduction

Part One: The Basic Model
1. Nine Theories of Judicial Behavior
2. The Judge as Labor-Market Participant
3. The Judge as Occasional Legislator
4. The Mind of the Legislating Judge

Part Two: The Model Elaborated
5. The Judicial Environment: External Constraints on Judging
6. Altering the Environment: Tenure and Salary Issues
7. Judicial Method: Internal Constraints on Judging
8. Judges Are Not Law Professors
9. Is Pragmatic Adjudication Inescapable?

Part Three: Justices
10. The Supreme Court Is a Political Court
11. Comprehensive Constitutional Theories
12. Judicial Cosmopolitanism

• Conclusion
• Acknowledgments
• Index

Editorial Reviews

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.com

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.

New York Times online - Barry Gewen

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" (7/9/2008 12:00:00 AM)

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" (6/8/2010 12:00:00 AM)

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" (2/11/2008 12:00:00 AM)

From the Publisher

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.

Forbes.com - James D. Zirin

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

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

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

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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