How Judges Think
by: Richard A. Posner
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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.
(20080211)
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.
(20080211)
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Customer Reviews
Average Rating:
Rating: 
- Excellent Analysis But Needs Some Editing!
I would agree with many of the reviewers that this is Posner at his finest. Although I tend to be skeptical of his articulation of pragmatism (especially via his selective use of economic theory), I found that this book really destroys the false binary that posits a clear split between activist and legalist judges.
Going beyond that, Posner also takes clear aim at the legal academy for mistaking the stated reasoning in legal opinions as the cause of a particular decision, rather than ... Read More
Rating: 
- Brlliant and fun analysis of how judges actually decide cases
This man is *cold*. Fortunately for the reader, it is this icy wit that makes reading Posner's books such a joy. Watch how he rips into inconsistencies:
'In discussing a case that invalidated the exclusion of homosexuals from the military, Beatty approvingly remarks that the court "noted the lack of `concrete' and `actual or significant' evidence that allowing gay men to enlist in the armed forces would prejudice its morale, fighting power, or operational effectiveness in any way." He ... Read More
Rating: - Posner the Judge on How Judges Think
I found this to be a very significant volume by Judge Posner, since he is writing on several of his strongest areas--legal philosophy, American judges, and theories of judicial decision-making.As the title indicates, this is an enormous topic and even to cover all of Posner's topics in a brief review is impossible.But this is what he is up to:
First, he wants to review existing explanatory theories of judicial behavior: the attitudinal; sociological; economic; organizational; pragmatic; ... Read More
Rating: 
- How Judges Think
My god, what a boring book this was.It was written like a law review article and nothing is more boring than a law review article (unless you are doing research).I was hoping for some down to earth conversation about how judges think, something that was an easy read.This was NOT an easy read was just BORING.I didn't even finish it.It was like a lecture on paper.
Rating: - Posner' most important book for the general public
This may be Posner's most important book; certainly the most likely of his books to be read across the political spectrum. Whoever (Obama) wins (Obama) the next election (Obama) would do well to read this before appointing anyone to the Court of Appeals or the Supreme Court.
Truly well written, well thought out, and well worth reading, especially by those of us on the left.
- Excellent Analysis But Needs Some Editing!I would agree with many of the reviewers that this is Posner at his finest. Although I tend to be skeptical of his articulation of pragmatism (especially via his selective use of economic theory), I found that this book really destroys the false binary that posits a clear split between activist and legalist judges.
Going beyond that, Posner also takes clear aim at the legal academy for mistaking the stated reasoning in legal opinions as the cause of a particular decision, rather than ... Read More
- Brlliant and fun analysis of how judges actually decide casesThis man is *cold*. Fortunately for the reader, it is this icy wit that makes reading Posner's books such a joy. Watch how he rips into inconsistencies:
'In discussing a case that invalidated the exclusion of homosexuals from the military, Beatty approvingly remarks that the court "noted the lack of `concrete' and `actual or significant' evidence that allowing gay men to enlist in the armed forces would prejudice its morale, fighting power, or operational effectiveness in any way." He ... Read More
- Posner the Judge on How Judges ThinkI found this to be a very significant volume by Judge Posner, since he is writing on several of his strongest areas--legal philosophy, American judges, and theories of judicial decision-making.As the title indicates, this is an enormous topic and even to cover all of Posner's topics in a brief review is impossible.But this is what he is up to:
First, he wants to review existing explanatory theories of judicial behavior: the attitudinal; sociological; economic; organizational; pragmatic; ... Read More
- How Judges ThinkMy god, what a boring book this was.It was written like a law review article and nothing is more boring than a law review article (unless you are doing research).I was hoping for some down to earth conversation about how judges think, something that was an easy read.This was NOT an easy read was just BORING.I didn't even finish it.It was like a lecture on paper.
- Posner' most important book for the general publicThis may be Posner's most important book; certainly the most likely of his books to be read across the political spectrum. Whoever (Obama) wins (Obama) the next election (Obama) would do well to read this before appointing anyone to the Court of Appeals or the Supreme Court.
Truly well written, well thought out, and well worth reading, especially by those of us on the left.
