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    How Judges Think (Pims - Polity Immigration and Society Series) (Paperback) By (author) Richard A. Posner

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    DescriptionA 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.


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  • Full bibliographic data for How Judges Think

    Title
    How Judges Think
    Authors and contributors
    By (author) Richard A. Posner
    Physical properties
    Format: Paperback
    Number of pages: 400
    Width: 155 mm
    Height: 231 mm
    Thickness: 28 mm
    Weight: 816 g
    Language
    English
    ISBN
    ISBN 13: 9780674048065
    ISBN 10: 0674048067
    Classifications

    BIC geographical qualifier V2: 1KBB
    B&T Book Type: NF
    BIC E4L: LAW
    Nielsen BookScan Product Class 3: S5.0
    B&T Modifier: Academic Level: 05
    Ingram Subject Code: LE
    Libri: I-LE
    B&T Modifier: Geographic Designator: 01
    BIC subject category V2: LNAA
    B&T Modifier: Subject Development: 04
    BISAC V2.8: LAW052000
    B&T General Subject: 490
    BISAC V2.8: LAW025000
    Warengruppen-Systematik des deutschen Buchhandels: 17720
    B&T Merchandise Category: UP
    B&T Approval Code: A39240000
    BIC subject category V2: LAB, 1KBB
    LC subject heading:
    BISAC V2.8: POL040030
    DC22: 347.012
    B&T Approval Code: A39300000
    LC subject heading:
    DC22: 347/.012
    BISAC V2.8: LAW111000
    LC subject heading:
    LC classification: K2300 .P67 2010
    Thema V1.0: LAB, LNAA
    Edition statement
    Reprint
    Illustrations note
    1 line illustration, 8 tables
    Publisher
    HARVARD UNIVERSITY PRESS
    Imprint name
    HARVARD UNIVERSITY PRESS
    Publication date
    18 May 2010
    Publication City/Country
    Cambridge, Mass
    Author Information
    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.
    Review quote
    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 online 20080709 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 20100608
    Back cover copy
    From the book: Ivan Karamazov said that if God does not exist everything is permitted, and traditional legal thinkers are likely to say that if legalism (legal formalism, orthodox legal reasoning, a "government of laws not men," the "rule of law" as celebrated in the loftiest "Law Day" rhetoric, and so forth) does not exist everything is permitted to judges--so watch out! Legalism does exist, and so not everything is permitted. But its kingdom has shrunk and greyed to the point where today it is largely limited to routine cases, and so a great deal is permitted to judges. Just how much is permitted and how they use their freedom are the principal concerns of this book. ... I am struck by how unrealistic are the conceptions of the judge held by most people, including practicing lawyers and eminent law professors, who have never been judges--and even by some judges. This unrealism is due to a variety of things, including the different perspectives of the different branches of the legal profession--including also a certain want of imagination. It is also due to the fact that most judges are cagey, even coy, in discussing what they do. They tend to parrot an official line about the judicial process (how rule-bound it is), and often to believe it, though it does not describe their actual practices. This book parts the curtain a bit.
    Table of contents
    * 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