Autocrat of the Armchair (Reviewing Richard A. Posner, How Judges Think)

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.

Keywords: Posner, courts, judges, judging