Bench Memos

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Judge Posner’s How Judges Think—Part 7


My posts (parts 1, 2, 3, 4, 5 and 6) about Judge Posner’s How Judges Think have consisted heavily of my criticisms and disagreements.  That’s basically because they bear on Posner’s central arguments.  At the outset of this final (I think) post, I would like to make clear that there is much in Posner’s book that is interesting and insightful.  In particular, although (as stated in Part 2) I think that Posner falls far short of his stated goal of providing a descriptive model of judicial behavior, anyone interested in the topic will find his discussion worth reading.  There are also various collateral discussions that I haven’t touched on—modern legal academia, Justice Breyer’s Active Liberty, Justice Kennedy’s “moral vanguardism,” and the Court’s misuse of foreign legal materials, to name a few—that many readers will appreciate.


My overall assessment of How Judges Think, however, is decidedly negative.  Beyond the criticisms that I’ve already offered, I’ll add that the book is at least one thorough redraft short of being ready for publication.  Posner states in his acknowledgments section that he has “incorporated material” from nine previous articles of his, “though with much revision and amplification,” but the book reads like a hasty copy-and-paste compilation, with little attention to harmonious coherence.  Posner is indisputably brilliant and amazingly prolific, but brilliance and rigor, alas, do not always keep company.

Tags: Whelan


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