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Abstract:
The question of how to optimally design judicial institutions is one of central importance to the scholarship focused on courts. Basic questions such as whether there should be mandatory retirement for judges, whether judges should be expected to write their own opinions and whether greater racial or gender diversity on the courts improves decision making are optimal design questions. Given the vast variation in the types of judicial system designs used around the world (and even within the United States), it should be possible to conduct a comparative analysis of the relative efficacy of the different designs. These comparisons cannot be evaluated, however, without first tackling the matter of how to measure justice or judicial performance. Although within the legal academy and the judiciary there is considerable skepticism and hostility to the measurement project, we argue that the project is worth attempting for both judges and academics. That said, the simple measures often used today, while necessary, cannot be relied on exclusively. To achieve a more reliable and useful measurement, judges must be involved in the process of arriving at the right characteristics to measure and the right ways to measure them. If judges get involved in improving the quality of data collection and measurement, the inherent dangers in empirical analysis of the judiciary will both be recognized and more effectively navigated. At the same time, empirical analysis with judicial participation is more likely to assist judges and judicial policymakers.

Abstract:
In his latest book, How Judges Think, Judge Richard Posner makes the case once again for "pragmatic" judging-law-making geared toward consequences reflecting sound public policy-in those areas of the law that are uncertain. He discusses at length the descriptive and normative limits of the "legalist" model of judging-judging based on logic, text, and precedent. Much of what he says seems old hat, although he asserts that most judges would feign horror at his contentions. It also would appear that much of what he says is based on introspection and personal observation as his generalizations usually are unsupported by data. But what is most missing in the book is an appreciation for the dynamic processes that confront judges, particularly in the trial courts, and the importance of the lawyers and the record to how many judges think. That judges have personal views is no revelation, but good judges are not content to rely on their own preconceptions. If they have preconceptions, they are eager to test them by exposing them to the litigants for this very purpose of testing. Judges who attempt to fairly and reliably find the facts and develop the record, including, where appropriate, a record that will permit judges to evaluate social and public policy consequences of different possible legal rules, are neither the "legalists" nor "pragmatists" that Posner describes: they are "empiricists" who respect the truthseeking processes of litigation and the importance of a fair process that permits the parties to influence how they think. Ironically, Posner, the academic empiricist, may be less empirical in his evaluation of judicial behavior than his subject judges are in their determinations of how to think and decide. Despite any shortcomings, however, the book is a significant addition to the literature on judging. To the extent that it is largely autobiographical, it represents the reflections of a great judge revealing how he thinks about judging.

Posner, courts, judges, judging

Abstract:
Conventional wisdom is that the academy and the judiciary have been growing farther apart in recent years. Judges complain that legal academic work has become increasingly theoretical and obscure. Gone are the days when a judge could pick up a leading law review and gain guidance on some important legal issue. Admittedly, fewer academics these days spend their time synthesizing cases. But while the divide between the two groups may have widened in certain respects, there are ways in which these two groups are (or should be) growing closer. The academy has increasing interest in studying the judiciary - using empirical tools to analyze: (1) patterns in judicial decisions; and (2) the effects of different forms of judicial organization and administration. Thus far, judges have not responded to the empirical scrutiny with great enthusiasm. If anything, they seem to view the modern turn to empirical research as further evidence of a misguided academy. That view, while perhaps understandable, given some of the rhetoric about "political judging" in the academic literature, may be worth changing. There is much that judges and academics could learn from each other. This new body of research if guided by judges holds promise for judges and academics alike. This Foreword describes an attempt, in collaboration with the Duke Law Journal, to encourage a conversation between judges and the academic empiricists who study them.