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Product details
File Size: 1627 KB
Print Length: 398 pages
Publisher: Harvard University Press; Reprint edition (May 1, 2010)
Publication Date: May 1, 2010
Sold by: Amazon Digital Services LLC
Language: English
ASIN: B00LTMDKMS
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#211,208 Paid in Kindle Store (See Top 100 Paid in Kindle Store)
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 experienceâ€), 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).
If you have been inside the world Judge Posner writes about, you will know how extraordinarily practical this book is. This is how judges think - not how they think they think. Legal decisions arise in real contexts and judges almost always react in part to that context. If they did not, then our law would be the same as it was in 1242. Posner illuminates the pragmatic truth clearly while providing ample theoretical background for the budding philosopher.At a time when the merely thoughtless insist that the "law be applied as written" (how, exactly, does one apply the phrase "equal protection" as written and divorced from context?)this refreshing burst of candor and common sense presented by the greatest legal mind of the past 50 years is critically important reading.
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