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| How Judges Think | 
 enlarge | Author: Richard A. Posner
Publisher: Harvard University Press
Category: Book
List Price: $29.95
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Avg. Customer Rating:  9 reviews
Sales Rank: 5029
Media: Hardcover
Number Of Items: 1
Pages: 400
Shipping Weight (lbs): 1.6
Dimensions (in): 9.3 x 6.4 x 1.4
ISBN: 0674028201
Dewey Decimal Number: 347.012
EAN: 9780674028203
ASIN: 0674028201
Publication Date: April 30, 2008
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| Customer Reviews:
| Showing reviews 6-9 of 9 | | « PREV | | |
 A Must Read for Any Trial Lawyer May 21, 2008
3 out of 8 found this review helpful
Posner brings his esteemed credentials as a circuit judge and authorative author to tackle the ultimate question: how do judges really make their decisions. Is it based strictly on the law and the facts of the case, or, as we are taught in law school, does it sometimes depend on what mood the judge is in.
Posner enlightens naive lawyers who might be tempted to believe that judges decide cases in a vacuum based on which side has submitted the best brief. He also uses his humor and exceptionally clear writing to show how judges reach decisions based on different types of cases.
In particular, every trial lawyer must answer the question, how will the judge influence my case, or how will he decide it if there is a bench trial (no jury). On appeal, the trial lawyer must also factor in how appellate judges will review his/her case. Posner gives invaluable insight in a very well-written and entertaining book.
Posner the Judge on How Judges Think June 7, 2008
3 out of 3 found this review helpful
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; legalistic; and policy choice. Posner here seeks to demonstrate that no one of these theories can wholly explain judicial behavior, and that some other approach he suggests is better suited to do the job.
Posner is quite a creative fellow, extremely well versed in a variety of literatures in addition to the legal. For example, he discusses judges as workers in the judicial system, quite an innovative approach. Next he focuses on judges as "occasional legislators" and what ideology a legislating judge employs. Unconscious preconceptions and intuitions are major topics in this discussion. Posner then shifts to what external and internal constraints limit judicial freedom of decisional action, including precedent, tenure and salary issues, and internal constraints (what we political scientists refer to as "role theory" and small group analysis). Along the way he takes some effective potshots at folks such as LLoyd Weinreib (who argues analogy as the key to legal analysis), the legal process school, "neutral principles" and the Scalia approach to constitutional interpretation. Interestingly enough, law professors are not a major constraint, because they have segregated themselves out of studying and interacting with judges. This is one of the most perceptive chapters in the book.
By chapter 9, Posner is zeroing in on one of his favorite topics--pragmatic adjudication. He argues that pragmatic policy concerns often are the best device for explaining judicial actions because Posner believes these considerations should guide judges. Of course, Judge Posner has written literally reams on this topic, but I found this one of his best discussions. Finally, Posner targets the Supreme Court, "a political court" as he terms it. The limited impact the Court has in policing the Courts of Appeals constitutes an interesting theme here. Posner follows this up with a fine review of Justice Breyer's "Active Libery" and a fascinating discussion of what he terms "judicial cosmopolitanism," or how much foreign legal concepts should play a role in American judicial decision making. This chapter includes highly critical discussions of Beatty's "Ultimate Rule of Law" and Israeli CJ Aharon Barak's "The Judge in a Democracy." Posner can throw critical right jabs with the best of them.
This is a very long book (at around 377 pages). But is it packed with thought stimulating material and arguments, as well as exceptionally useful bibliographic references in the notes (which are actually at the foot of each page). Anyone interested in American judges and what they do, and why they do it, would consider this volume as essential reading.
Posner' most important book for the general public May 25, 2008
1 out of 7 found this review helpful
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! July 11, 2008
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 its effect. He makes it abundantly clear that legal scholars have lost connection with the judiciary and potentially the legal profession as a whole.
However, I can only give the four stars because the book desperately needed a good editor. Because the chapter are mostly previously published material, they are quite repetitive and probably make the book fifty pages longer than it needs to be. It would have been much better if Posner could have made the argument flow more coherently into a single argument instead of a dozen stand alone claims.
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