Bench Memos

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Judge Posner’s How Judges Think—Part 2


In How Judges Think, does Judge Posner succeed in his stated goal of providing a “cogent, unified, realistic, and appropriately eclectic account of how judges actually arrive at their decisions in nonroutine cases”?  I certainly don’t think so.  As Posner himself acknowledges, his “nine overstated or incomplete” theories of judicial behavior—attitudinal, strategic, sociological, psychological, economic, organizational, pragmatic, phenomenological, and legalistic—“make for an unwieldy analytic apparatus.”  That analytic apparatus becomes even more unwieldy when Posner adds in his insights on the various factors that motivate and constrain judicial decisionmaking.  The fact that Posner’s approach is highly theoretical and abstract, not empirical, compounds the problem.  In the end, the reader is left with a hodgepodge of considerations—an interesting hodgepodge, but a hodgepodge nonetheless—that might or might not affect how various judges decide various cases. 


I don’t mean to suggest that Posner should have been able to do better.  Instead, it seems to me that his stated goal was wildly unrealistic.  What we have is not a book that sheds any particular insights about how judges actually think, but rather a book that, in the end, is really much more about how Judge Posner thinks judges should think.

Tags: Whelan


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