How Judges Think

Author: Richard A. Posner
Publisher: Harvard University Press
ISBN: 0674033833
Category : Law
Languages : en
Pages : 399

Book Description
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

Author: Richard A. Posner
Publisher: Harvard University Press
ISBN: 0674184653
Category : Law
Languages : en
Pages : 423

Book Description
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

Author: Richard A. Posner
Publisher: Harvard University Press
ISBN: 0674286030
Category : Law
Languages : en
Pages : 432

Book Description
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

Author: Lee Epstein
Publisher: Harvard University Press
ISBN: 0674070682
Category : Law
Languages : en
Pages : 491

Book Description
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.

How Judges Judge

Author: Brian M. Barry
Publisher: Taylor & Francis
ISBN: 0429657498
Category : Law
Languages : en
Pages : 361

Book Description
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.

What's Law Got to Do With It?

Author: Charles Gardner Geyh
Publisher: Stanford University Press
ISBN: 0804782121
Category : Law
Languages : en
Pages : 560

Book Description
Top US legal scholars and political scientists examine how the law shapes judges’ behavior and decisions, and what it means for society at large. Although there is a growing consensus among legal scholars and political scientists, significant points of divergence remain. Contributors to What’s Law Got to Do with It? explore ways to reach greater accord on the complexity and nuance of judicial decision making and judicial elections, while acknowledging that agreement on what judges do is not likely to occur any time soon. As the first forum in which political scientists and legal scholars engage with one another on these hot button issues, this volume strives to establish a true interdisciplinary conversation. The inclusion of reactions from practicing judges puts into high relief the deep-seated and opposing beliefs about the roles of law and politics in judicial work. Praise for What’s Law Got to Do with It? “Geyh (associate dean for research and John F. Kimberling professor of law, Indiana Univ. School of Law) is well qualified to edit this reader about the interaction of law and politics in contemporary society. The contributors . . . are among the very best scholars in the legal and political science realm . . . . The writing is lively and easy to follow for the somewhat sophisticated reader . . . . Highly recommended.” —Choice “Readers will find these essays fascinating, thoughtful and sometimes infuriating, as conventional disciplinary wisdom is defended, modified and refuted. The result is a terrific text for all students of the legal process.” —Mark A. Graber, University of Maryland “This volume pulls together an excellent cast to examine one of the most intriguing and most difficult questions in the study of law and politics today—what role does law play in the job of judging? There is a lot to learn in these pages, and this book does a fine job of pushing the conversation forward.” —Keith Whittington, Princeton University

The Authority of the Court and the Peril of Politics

Author: Stephen Breyer
Publisher: Harvard University Press
ISBN: 0674269365
Category : Law
Languages : en
Pages : 113

Book Description
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.

Making Your Case

Author: Antonin Scalia
Publisher: West Publishing Company
ISBN: 9780314184719
Category : Appellate procedure
Languages : en
Pages : 0

Book Description
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 Lawyer-Judge Bias in the American Legal System

Author: Benjamin H. Barton
Publisher: Cambridge University Press
ISBN: 1139495585
Category : Law
Languages : en
Pages : 313

Book Description
Virtually all American judges are former lawyers. This book argues that these lawyer-judges instinctively favor the legal profession in their decisions and that this bias has far-reaching and deleterious effects on American law. There are many reasons for this bias, some obvious and some subtle. Fundamentally, it occurs because - regardless of political affiliation, race, or gender - every American judge shares a single characteristic: a career as a lawyer. This shared background results in the lawyer-judge bias. The book begins with a theoretical explanation of why judges naturally favor the interests of the legal profession and follows with case law examples from diverse areas, including legal ethics, criminal procedure, constitutional law, torts, evidence, and the business of law. The book closes with a case study of the Enron fiasco, an argument that the lawyer-judge bias has contributed to the overweening complexity of American law, and suggests some possible solutions.

Equal Justice

Author: Frederick Wilmot-Smith
Publisher: Harvard University Press
ISBN: 0674243730
Category : Law
Languages : en
Pages : 273

Book Description
A philosophical and legal argument for equal access to good lawyers and other legal resources. Should your risk of wrongful conviction depend on your wealth? We wouldn’t dream of passing a law to that effect, but our legal system, which permits the rich to buy the best lawyers, enables wealth to affect legal outcomes. Clearly justice depends not only on the substance of laws but also on the system that administers them. In Equal Justice, Frederick Wilmot-Smith offers an account of a topic neglected in theory and undermined in practice: justice in legal institutions. He argues that the benefits and burdens of legal systems should be shared equally and that divergences from equality must issue from a fair procedure. He also considers how the ideal of equal justice might be made a reality. Least controversially, legal resources must sometimes be granted to those who cannot afford them. More radically, we may need to rethink the centrality of the market to legal systems. Markets in legal resources entrench pre-existing inequalities, allocate injustice to those without means, and enable the rich to escape the law’s demands. None of this can be justified. Many people think that markets in health care are unjust; it may be time to think of legal services in the same way.