How Judges Think (Pims - Polity Immigration and Society Series)

Richard Posner, one of America's leading Legal Scholars, has breathtaking range: from Aging ( Aging and Old Age ) and Intelligence ( Uncertain Shield: The U.S. Intelligence System in the Throes of Reform (Hoover Studies in Politics, Economics, and Society) ) to Sex ( Sex and Reason ) and Terrorism ( Countering Terrorism: Blurred Focus, Halting Steps ). In this book Posner returns to one of the main themes of his scholarship - the failure of Formalist judging and the possibility of Pragmatism as an alternative. This is a recurring theme for Posner (see my reviews of "Sex and Reason" and  Overcoming Law , and especially Posner's  The Problematics of Moral and Legal Theory ) and one on which he can speak from experience: He's a Judge of the US Court of Appeal for the 7th Circuit.Posner's book is a collection of articles published elsewhere; Its main theme is constructed from Law articles, a survey of the Supreme Court's 2004 term, various book reviews, and even, I think, Blog posts. The end product offers fascinating discussions of many topics, but it feels somewhat disjoint, as if Posner was constantly being sidetracked, albeit in interesting directions.Posner's main argument, one that would find no disagreement from me, is that American Judges are not Formalists. Formalists argue that legal decisions are (or should be) made in an algorithmic fashion - that there is only one right answer, and that it is independent of the Judge's personality and politics.That judicial decisions are not Formally determinable, at least in the most interesting cases, has been argued for centuries. Posner demolishes some of the tropes of Formalism old ("reasoning by analogy" pp. 181-190) and new-ish ("Originalism" pp. 343-345) and offers statistical evidence that US judges are not Formalist: the opinions of judges appointed by Democratic administrations differ from those of Republican appointed ones.But if judges are not Formalist, what are they? Are there only two choices - Formalist(unfeasible in many cases) or political (As Justice Scalia suggests in an article titled "Originalism - the Lesser Evil")? In this and other writing, Posner offers an alternative: Pragmatism.Pragmatism can help constrain Judges and decide cases in ways that would not seem to be political. A Posnerian Pragmatist should judge cases in which the Formalist apparatus breaks down in three ways:First, in some fields there exists a "limited... field-specific ideological consensus" (p. 373). In contracts and torts, property law and bankruptcy law - the traditional domains of the Common Law - the basic ideological issues are agreed upon. Therefore judges can use instrumental reasoning as to how best achieve agreed upon goals.Second, in areas upon which there is little consensus, such as Constitutional Law, the Posnerian Judge would be a minimalist. Subjecting oneself to Oliver Wendell Holmes's " "Puke Test" - a statue is unconstitutional only if it makes you want to throw up... a conviction of error is not enough - there must be revulsion" (p. 288). Judges would be mostly deferential to the "political" branches.The third, most interesting element of Posner's Jurisprudence is the reliance on Social Science. Posner believes that by immersing oneself in the facts of the case, and in relevant scientific knowledge, one can sometimes transcend the personal dimension of the decision. Essentially, the social sciences can help move an issue from the second category - that of contested moral principles - to the first, thus achievingan "apolitical" or Pragmatic, ruling.Pragmatism is not a cure all for legal dilemmas; They can have more than one pragmatic answer. Take the Kelo case (Kelo v. City of New London, pp. 314-320). New London used its power of "eminent domain", forcing landowners to sell land to it at market prices, and then gave the land for public contractors to use in an urban development project. This appropriation of private property was understandably unpopular among owners, who probably estimated the land at a higher value than its market value - otherwise, they would have sold it willingly.The economic justification for thus appropriating land is the `hold out' problem - sometimes, particular lots are necessary for a project. If they are, the owners, facing no competition, can hold out for a very high price. The power of "eminent domain" is thus an anti-monopoly device.One pragmatic solution to the case would have been asking whether the situation in Kelo was a `hold out' situation. If so, justification existed for the use of the eminent domain. If not, its use was essentially subsidizing private contractors at the expense of the owners.Instead of thus resolving the case, the Supreme Court refused to intervene in a political issue. That result, Posner reports, was a pragmatic triumph also. By refusing to defend owners against government action, the Court pushed owners to the public sphere, where they can fight the government's power "The responses of Congress and the states will constitute a series of social experiments from which much will be learned about the proper limits on eminent domain" (p. 319).Is Posner's prognosis, limited as it is, only normative or also positive? Are US Judges really pragmatic? I think that, unfortunately, they are not. First, the Justices in the Kelo case showed little interest in the Social science behind the use of eminent domain. Application of social sciences in other cases is faulty and undisciplined (pp. 297-299). All the current Justices had been Court of Appeal Judges - did they forget their pragmatism when promoted? The Justices are not a representative sample of US judges, but is there any reason to think they are less empirically inclined?Indeed, despite Posner's assurance that "Judges are curious about [social reality]... they want the lawyers to help them dig below the semantic surface." (p. 228), I wonder why we can't see that in practice. Law is a highly competitive business. If social science would give lawyers an edge in winning cases, one would think competition would teach lawyers how to use it. Factual, "Brandeis", briefs have been around... well, since Brandeis. Why aren't they making more of an effect?My guess is that Posner is still an anomaly. Most American judges are not Pragmatists. Maybe we will "overcome law" some day, but we aren't there yet.

Posner is pretty much the Go-To Guy in legal studies today. You may disagree with his conclusions but he won’t bore you (he’s a forceful writer), you won’t find it hard to follow him (he writes clearly), and you won’t wonder whether he has a hidden agenda (he is open and forthright in stating his sources, as well as any reservations he has about his own conclusions drawn from them). He’s academic (well documented and well reasoned) but not overly academic: his observations are always rooted in experience, for he is both an eminent teacher of jurisprudence at the University of Chicago and an acting federal circuit court judge, with years of practice on the bench. His books are not easy reads –he explores complicated issues and doesn’t simplify them—but you’ll never get lost in them, because he is an exceptionally articulate explainer. Years ago, when I was a history professor at a small women’s college in the east, I taught a course on historical method, and it was writers (thinkers) (scholars) like Posner I wanted to introduce to my students, not that he writes like historians do but that he writes forcefully, sparingly, lucidly and compellingly, and persuasion is just as important a part of any scholar’s business as explication.This is the third book by Posner that I have read. All three books were good. Two –including this one—are superb, models of engaged scholarship. (If you haven’t read anything by him before, I recommend you start with Reflections on Judging, 2013.) Posner is It.Arguing against legalism and various forms of moralism, Posner argues for a restrained pragmatic approach to the law, in line with his models on the bench, especially Holmes (“The life of the law has not been logic; it has been experience”), who accepted that the written law only went so far and that beyond that point, the prudent judge crossed from enforcing pre-existing, stringent rules to making new law. Law in action is imprecise but not amorphous. “In our system the law as it is enforced in courts is created by judges, using legal propositions as raw materials.” He does not argue that a judge can make any law he wants. Rather, he argues that in any but the most constrained case, the judge must choose among courses of action that are not automatically (because the law tells the judge exactly what to do) clean --or should I say clear? From this simple premise –that judges are de facto legislators—Posner moves to a critique of many, maybe most academic commentators on the law, and a scathing critique of what is taught in even the best law schools in our country. He has, is in other books, harsh words to say about Justice Scalia’s supposed originalism, which he finds inadequate and self-deceiving –even Scalia admitted that he moved beyond it at times.If I were a lawyer, I would read this book NOW.

In this erudite and highly readable book, a distinguished judge and scholar provides the reader with remarkable insights into how judges think, or ought to think, when interpreting and creating the law. Judge Posner rejects sterile legalist theories in favor of a pragmatic approach to judicial decision-making, heavily influenced by economic theory. Drawing on insights from psychology, American legal history, and economics, Judge Posner argues persuasively that judges are not rule-bound adjudicating machines mechanically applying the law; rather judges creatively engage the real world by balancing competing interests, weighing consequences, and applying cost/benefit analyses when interpreting the law. In the process, judges, at least in the unique American judicial system, inevitably act as legislators and, yes, as human beings, they are influenced by life experiences, political beliefs, and psychological make-up. The result is a highly sophisticated and nuanced discussion of how judges think, or at least how they should think. This book is written in a lively style, with humor, wit, and a great deal of wisdom, including some very practical advice regarding how attorneys should frame their arguments when they appear in court. (Hint: instead of focusing on words; focus on the real world consequences of your arguments).

Não dei 5, pela qualidade do papel. Nossos livros têm mais qualidade nesse quesito. Mas a entrega foi rápida e o livro uma bela surpresa.

muito interessante, extremamente útil em minha monografia. Aborda uma teoria descritiva e um modelo de tomada de decisão jurídica... Análise econômica do direito