Reflections on Judging

Reflections on Judging

RICHARD A. POSNER
Copyright Date: 2013
Published by: Harvard University Press
https://www.jstor.org/stable/j.ctt6wpp22
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  • Book Info
    Reflections on Judging
    Book Description:

    For Richard Posner, legal formalism and formalist judges--notably Antonin Scalia--present the main obstacles to coping with the dizzying pace of technological advance. Posner calls for legal realism--gathering facts, considering context, and reaching a sensible conclusion that inflicts little collateral damage on other areas of the law.

    eISBN: 978-0-674-18464-0
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. I-VI)
  2. Table of Contents
    (pp. VII-XII)
  3. INTRODUCTION: A Judge on the Challenges to Judges
    (pp. 1-17)

    My subject is the challenges that the federal courts face today, with particular emphasis on rising complexity. My approach is personal, in the sense of drawing heavily on my own experience as a judge. It is also realistic, in the sense of rejecting formalist approaches to law. Those are approaches premised on a belief that all legal issues can be resolved by logic, text, or precedent, without a judge’s personality, values, ideological leanings, background and culture, or real-world experience playing any role. The realist tradition in judging is the tradition shaped by such outstanding judges as John Marshall, Oliver Wendell...

  4. 1 THE ROAD TO 219 SOUTH DEARBORN STREET
    (pp. 18-35)

    My chapter title is not as dramatic asThe Road to Wigan Pierby George Orwell orTo the Finland Stationby Edmund Wilson; 219 South Dearborn Street in Chicago, the address of the federal courthouse that houses the United States Court of Appeals for the Seventh Circuit, simply turned out unexpectedly to be my career destination. The “road” I took offers some insight into the complexification of the federal judiciary, however, which is a major theme of the book.

    I entered Yale College in 1959 at sixteen, having skipped my last year of high school.¹ I went to Yale...

  5. 2 THE FEDERAL JUDICIARY EVOLVES
    (pp. 36-53)

    My firsthand acquaintance with the federal judiciary began in 1962 with my clerkship for Justice Brennan. That’s more than half a century ago. The federal judiciary has changed quite a bit since then, and even quite a bit just since 1981, when I became a judge. I touched briefly in the preceding chapter on the increase in the length and rigor of the screening of judicial candidates, and questioned the value of the increase from the standpoint of the quality of the judiciary. I don’t deny that it serves senators’ political goals, or that it may be the inevitable product...

  6. 3 THE CHALLENGE OF COMPLEXITY
    (pp. 54-104)

    I need to explain at somewhat greater length than I did in the Introduction what I mean by “complex” and “complexity.” I do not mean “difficult” and “difficulty.” A question can be difficult without being complex. Many issues are difficult for judges to resolve—even insolubly difficult, because they require value choices that can’t be shown to be correct or incorrect or because the facts that would be needed to resolve issues in a case satisfactorily are unobtainable. That has always been a problem in our legal system, and the only solution, though incomplete, is to have a diverse judiciary...

  7. 4 FORMALISM AND REALISM IN APPELLATE DECISION MAKING
    (pp. 105-130)

    I now embark on a series of analyses of the decision-making process at the appellate and trial levels of the federal judiciary, beginning with the appellate level. My aim is to explain the process and suggest improvements responsive to the concerns that I have expressed in the preceding chapters, and to other concerns as well. Much of the discussion in this chapter, and also in subsequent chapters, is organized around the tension between formalism and realism (as I explained those terms in the Introduction) as modes of appellate decision making. The implication for the challenge of complexity should be apparent:...

  8. 5 THE INADEQUATE APPELLATE RECORD
    (pp. 131-148)

    Factual assertions in briefs tend to be of two kinds: names, dates, and other background facts likely to be encountered in any narrative but rarely significant to the decision of a case; and facts similar to facts that have appeared in previous cases, the cases the parties will have cited as precedents. All too often, facts that are important to a sensible decision are missing from the briefs, and indeed from the judicial record. If it is a commercial case, the judge needs to understand why the transaction at issue was configured as it was; if it is a criminal...

  9. 6 COPING STRATEGIES FOR APPELLATE JUDGES I: Judicial Self-Restraint
    (pp. 149-177)

    I have been arguing that in the face of mounting complexity, appellate judges should become more realistic, less passive, more fact- and policy-oriented. There was once a passive alternative, called “judicial self-restraint” or just “judicial restraint,” that appealed to judges in constitutional cases. No longer.¹ Yet it deserves to be taken seriously, and is the subject of this chapter. In the next chapter I take up another passive strategy—textual originalism—thought by some judges to provide an escape from the need to grapple with the complexity of today’s world. I also discuss in that chapter an activist interpretive strategy...

  10. 7 COPING STRATEGIES FOR APPELLATE JUDGES II: Interpretation
    (pp. 178-235)

    Nowadays the most ambitious efforts to free judges from having to understand empirical reality parade under the banner of interpretation. A linked pair go by the names “textualism” and “originalism”—in other words literalism and historicism. Together they constitute textual originalism, whose votaries purport to “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.”¹ So all that judges have to do and all they should do when faced with...

  11. 8 MAKE IT SIMPLE, MAKE IT NEW: Opinion Writing and Appellate Advocacy
    (pp. 236-286)

    Badly written judicial opinions might seem a distinctly peripheral concern of a legal system struggling to cope with the modern technical world. But that is not so. My concern is not with philistinism but with lack of clarity, which is a product of jargon, verbosity, and excessive delegation to law clerks and an important source and example of gratuitous internal complexity—of judges distracted from wrestling with the complexity of modernity by producing judicial opinions that further complexify law. Because opinion writing at the appellate level (the level on which I focus) is significantly influenced by appellate advocacy, I include...

  12. 9 FORAYS INTO THE DISTRICT COURT
    (pp. 287-328)

    I have said that any federal appellate judge who has not been a trial judge ought to try cases occasionally in the district courts of his circuit. I have been doing that since I was first appointed. I had no trial experience, except as an expert witness, prior to becoming a judge, and I committed errors, occasionally reversible ones, in my early trials. But I don’t think I did major harm and I learned a lot that was and is valuable to me as a court of appeals judge and that enables me to tender suggestions regarding the trial process...

  13. 10 WHAT CAN BE DONE, MODESTLY?
    (pp. 329-350)

    The United States is not about to discard the adversary system or the appointment of federal judges by politicians. I have no interest in proposing Utopian solutions to the problem of increasing complexity that confronts and baffles the federal judiciary. But there are some feasible incremental measures that would con tribute to solving the problem, though how much they would contribute is another question. Some of these measures I’ve discussed in earlier chapters, such as a greater dose of legal realism in the appellate process and a greater use of court-appointed expert witnesses. Others are the subject of this chapter....

  14. CONCLUSION: Realism, the Path Forward
    (pp. 351-366)

    Federal judges are falling behind. The problem is not caseload; it is case content. Judges aren’t coping well with the increased complexity, mainly but not only scientific and technological, of modern society. In Chapter 3 I quoted Daniel Arbess’s remark that we live “in a world of increasingly complex, fragmented, and ubiquitous information.” The “we” includes judges. But we judges are not inhabiting this new world comfortably. Rather than try to understand the world outside our books and traditions, we (most of us anyway) burrow deeper into a complex world of our own making, as if to validate Coke’s claim...

  15. ACKNOWLEDGMENTS
    (pp. 369-370)
  16. INDEX
    (pp. 371-380)