Thursday, April 9, 2009

How Judges Think by Richard Posner

I'm reading How Judges Think, by the eminent judge, professor, and blogger Richard Posner. I highly recommend it to anyone who's interested in understanding what really drives judges' rulings.

Here are a few tidbits, all from the introduction:

  • Ivan Karamazov said that if God does not exist everything is permitted, and traditional legal thinkers are likely to say that if legalism (legal formalism, orthodox legal reasoning, a "government of laws not men," the "rule of law" ... and so forth) does not exist everything is permitted to judges -- so watch out!
  • [M]ost judges are cagey, even coy, in discussing what they do. They tend to parrot an official line about the judicial process (how rule-bound it is), and often to believe it, though it does not describe their actual practices.
  • The secrecy of judicial deliberations is an example of professional mystification. Professions such as law and medicine provide essential services that are difficult for outsiders to understand and evaluate. Professionals like it that way because it helps them maintain a privileged status. But they know they have to overcome the laity's mistrust, and they do this in part by developing a mystique that exaggerates not only the professional's skill but also his disinterest.
More to come...