Friday, April 10, 2009

Richard Posner on the benefits of America's legal system and why we care about how judges think

Here are some more tidbits from the introduction of Richard Posner's excellent book How Judges Think:

  • [I]t is even harder to estimate the benefits of our legal system than its costs. Legal rights are options that may have value even if never exercised, but how to value such options? And legal duties deter harmful conduct — but how effectively is extremely difficult to determine too.
  • The judicial mentality would be of little interest if judges did nothing more than apply clear rules of law created by legislators, administrative agencies, the framers of constitutions, and other extrajudicial sources (including commercial custom) to facts that judges and juries determined without bias or preconceptions. Then judges would be well on the road to being superseded by digitized artificial intelligence programs. [Footnote:] I do not know why originalists and other legalists are not AI enthusiasts.
  • The confidentiality of the judicial process would not matter greatly to an understanding and evaluation of the legal system if the consequences of judicial behavior could be readily determined. If you can determine the ripeness of a cantaloupe by squeezing or smelling it, you don't have to worry about the produce clerk's mental processes.
Do you think we underestimate the benefits of the legal system because they're so hard to assess?