Reflections on Judging
by Richard A. Posner
(Author)
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.
