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How Judges Think

How Judges Think
Author: Richard A. Posner
Publisher: Harvard University Press
Total Pages: 399
Release: 2010-05-01
Genre: Law
ISBN: 0674033833

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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.


Reflections on Judging

Reflections on Judging
Author: Richard A. Posner
Publisher: Harvard University Press
Total Pages: 423
Release: 2013-10-07
Genre: Law
ISBN: 0674184653

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In Reflections on Judging, Richard Posner distills the experience of his thirty-one years as a judge of the United States Court of Appeals for the Seventh Circuit. Surveying how the judiciary has changed since his 1981 appointment, he engages the issues at stake today, suggesting how lawyers should argue cases and judges decide them, how trials can be improved, and, most urgently, how to cope with the dizzying pace of technological advance that makes litigation ever more challenging to judges and lawyers. For Posner, legal formalism presents one of the main obstacles to tackling these problems. Formalist judges--most notably Justice Antonin Scalia--needlessly complicate the legal process by advocating "canons of constructions" (principles for interpreting statutes and the Constitution) that are confusing and self-contradictory. Posner calls instead for a renewed commitment to legal realism, whereby a good judge gathers facts, carefully considers context, and comes to a sensible conclusion that avoids inflicting collateral damage on other areas of the law. This, Posner believes, was the approach of the jurists he most admires and seeks to emulate: Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, Learned Hand, Robert Jackson, and Henry Friendly, and it is an approach that can best resolve our twenty-first-century legal disputes.


Divergent Paths

Divergent Paths
Author: Richard A. Posner
Publisher: Harvard University Press
Total Pages: 432
Release: 2016-01-04
Genre: Law
ISBN: 0674286030

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Judges and legal scholars talk past one another, if they have any conversation at all. Academics criticize judicial decisions in theoretical terms, which leads many judges to dismiss academic discourse as divorced from reality. Richard Posner reflects on the causes and consequences of this widening gap and what can be done to close it.


The Behavior of Federal Judges

The Behavior of Federal Judges
Author: Lee Epstein
Publisher: Harvard University Press
Total Pages: 491
Release: 2013-01-07
Genre: Law
ISBN: 0674070682

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Judges play a central role in the American legal system, but their behavior as decision-makers is not well understood, even among themselves. The system permits judges to be quite secretive (and most of them are), so indirect methods are required to make sense of their behavior. Here, a political scientist, an economist, and a judge work together to construct a unified theory of judicial decision-making. Using statistical methods to test hypotheses, they dispel the mystery of how judicial decisions in district courts, circuit courts, and the Supreme Court are made. The authors derive their hypotheses from a labor-market model, which allows them to consider judges as they would any other economic actors: as self-interested individuals motivated by both the pecuniary and non-pecuniary aspects of their work. In the authors' view, this model describes judicial behavior better than either the traditional “legalist” theory, which sees judges as automatons who mechanically apply the law to the facts, or the current dominant theory in political science, which exaggerates the ideological component in judicial behavior. Ideology does figure into decision-making at all levels of the federal judiciary, the authors find, but its influence is not uniform. It diminishes as one moves down the judicial hierarchy from the Supreme Court to the courts of appeals to the district courts. As The Behavior of Federal Judges demonstrates, the good news is that ideology does not extinguish the influence of other components in judicial decision-making. Federal judges are not just robots or politicians in robes.


Richard Posner

Richard Posner
Author: William Domnarski
Publisher: Oxford University Press
Total Pages: 336
Release: 2016-08-25
Genre: Law
ISBN: 0199332339

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Judge Richard Posner is one of the great legal minds of our age, on par with such generation-defining judges as Holmes, Hand, and Friendly. A judge on the U.S. Court of Appeals for the Seventh Circuit and the principal exponent of the enormously influential law and economics movement, he writes provocative books as a public intellectual, receives frequent media attention, and has been at the center of some very high-profile legal spats. He is also a member of an increasingly rare breed-judges who write their own opinions rather than delegating the work to clerks-and therefore we have unusually direct access to the workings of his mind and judicial philosophy. Now, for the first time, this fascinating figure receives a full-length biographical treatment. In Richard Posner, William Domnarski examines the life experience, personality, academic career, jurisprudence, and professional relationships of his subject with depth and clarity. Domnarski has had access to Posner himself and to Posner's extensive archive at the University of Chicago. In addition, Domnarski was able to interview and correspond with more than two hundred people Posner has known, worked with, or gone to school with over the course of his career, from grade school to the present day. The list includes among others members of the Harvard Law Review, colleagues at the University of Chicago, former law clerks over Posner's more than thirty years on the United States Court of Appeals for the Seventh Circuit, and even other judges from that court. Richard Posner is a comprehensive and accessible account of a unique judge who, despite never having sat on the Supreme Court, has nevertheless dominated the way law is understood in contemporary America.


How Judges Judge

How Judges Judge
Author: Brian M. Barry
Publisher: Taylor & Francis
Total Pages: 361
Release: 2020-11-26
Genre: Law
ISBN: 0429657498

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A judge’s role is to make decisions. This book is about how judges undertake this task. It is about forces on the judicial role and their consequences, about empirical research from a variety of academic disciplines that observes and verifies how factors can affect how judges judge. On the one hand, judges decide by interpreting and applying the law, but much more affects judicial decision-making: psychological effects, group dynamics, numerical reasoning, biases, court processes, influences from political and other institutions, and technological advancement. All can have a bearing on judicial outcomes. In How Judges Judge: Empirical Insights into Judicial Decision-Making, Brian M. Barry explores how these factors, beyond the law, affect judges in their role. Case examples, judicial rulings, judges’ own self-reflections on their role and accounts from legal history complement this analysis to contextualise the research, make it more accessible and enrich the reader’s understanding and appreciation of judicial decision-making. Offering research-based insights into how judges make the decisions that can impact daily life and societies around the globe, this book will be of interest to practising and training judges, litigation lawyers and those studying law and related disciplines.


Making Your Case

Making Your Case
Author: Antonin Scalia
Publisher: West Publishing Company
Total Pages: 0
Release: 2008
Genre: Appellate procedure
ISBN: 9780314184719

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In their professional lives, courtroom lawyers must do these two things well: speak persuasively and write persuasively. In this noteworthy book, two noted legal writers systematically present every important idea about judicial persuasion in a fresh, entertaining way. The book covers the essentials of sound legal reasoning, including how to develop the syllogism that underlies any argument. From there the authors explain the art of brief writing, especially what to include and what to omit, so that you can induce the judge to focus closely on your arguments. Finally, they show what it takes to succeed in oral argument.


The Authority of the Court and the Peril of Politics

The Authority of the Court and the Peril of Politics
Author: Stephen Breyer
Publisher: Harvard University Press
Total Pages: 113
Release: 2021-09-14
Genre: Law
ISBN: 0674269365

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A sitting justice reflects upon the authority of the Supreme CourtÑhow that authority was gained and how measures to restructure the Court could undermine both the Court and the constitutional system of checks and balances that depends on it. A growing chorus of officials and commentators argues that the Supreme Court has become too political. On this view the confirmation process is just an exercise in partisan agenda-setting, and the jurists are no more than Òpoliticians in robesÓÑtheir ostensibly neutral judicial philosophies mere camouflage for conservative or liberal convictions. Stephen Breyer, drawing upon his experience as a Supreme Court justice, sounds a cautionary note. Mindful of the CourtÕs history, he suggests that the judiciaryÕs hard-won authority could be marred by reforms premised on the assumption of ideological bias. Having, as Hamilton observed, Òno influence over either the sword or the purse,Ó the Court earned its authority by making decisions that have, over time, increased the publicÕs trust. If public trust is now in decline, one part of the solution is to promote better understandings of how the judiciary actually works: how judges adhere to their oaths and how they try to avoid considerations of politics and popularity. Breyer warns that political intervention could itself further erode public trust. Without the publicÕs trust, the Court would no longer be able to act as a check on the other branches of government or as a guarantor of the rule of law, risking serious harm to our constitutional system.


Cardozo

Cardozo
Author: Richard A. Posner
Publisher: University of Chicago Press
Total Pages: 169
Release: 2019-08-05
Genre: Law
ISBN: 022671568X

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What makes a great judge? How are reputations forged? Why do some reputations endure, while others crumble? And how can we know whether a reputation is fairly deserved? In this ambitious book, Richard Posner confronts these questions in the case of Benjamin Cardozo. The result is both a revealing portrait of one of the most influential legal minds of our century and a model for a new kind of study—a balanced, objective, critical assessment of a judicial career. "The present compact and unflaggingly interesting volume . . . is a full-bodied scholarly biography. . . .It is illuminating in itself, and will serve as a significant contribution."—Paul A. Freund, New York Times Book Review


Law, Pragmatism, and Democracy

Law, Pragmatism, and Democracy
Author: Richard A. Posner
Publisher: Harvard University Press
Total Pages: 428
Release: 2009-07-01
Genre: Law
ISBN: 9780674042292

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A liberal state is a representative democracy constrained by the rule of law. Richard Posner argues for a conception of the liberal state based on pragmatic theories of government. He views the actions of elected officials as guided by interests rather than by reason and the decisions of judges by discretion rather than by rules. He emphasizes the institutional and material, rather than moral and deliberative, factors in democratic decision making. Posner argues that democracy is best viewed as a competition for power by means of regular elections. Citizens should not be expected to play a significant role in making complex public policy regarding, say, taxes or missile defense. The great advantage of democracy is not that it is the rule of the wise or the good but that it enables stability and orderly succession in government and limits the tendency of rulers to enrich or empower themselves to the disadvantage of the public. Posner’s theory steers between political theorists’ concept of deliberative democracy on the left and economists’ public-choice theory on the right. It makes a significant contribution to the theory of democracy—and to the theory of law as well, by showing that the principles that inform Schumpeterian democratic theory also inform the theory and practice of adjudication. The book argues for law and democracy as twin halves of a pragmatic theory of American government.