Chapter Five – The Judicial Environment: External Constraints on Judging – Some of the constraints to which Judge Posner refers in the chapter title are: concern for reputation, judicial agency costs, users seeking alternative dispute resolution mechanisms, appointment and promotion, campaign contributions (in those states where judges are elected), fear of being reversed, backlog pressure, pressure for cooperative behavior, desire to influence the development of the law, judicial evaluation, and ethical and professional norms.

Chapter Six – Altering the Environment: Tenure and Salary – “We can learn more about judicial behavior by considering the likely effects on it of two proposals that would alter the federal judicial environment: imposing term limits on federal judges, which would require a constitutional amendment, and increasing their salaries substantially, which would not.”

Chapter Seven – Judicial Method: Internal Constraints on Judging – “[B]ecause an American judge, especially at the appellate level, is an occasional legislator, yet with no constituency to answer to , his judging is likely to be influenced by temperament, emotion, experience, personal background, and ideology (influenced in turn by temperament and experience), as well by an “objective” understanding of what would be the “best” legislative policy to adopt in order to resolve the issue in the case.

Chapter Eight – Judges Are Not Law Professors – Judge Posner comments that academic criticism, better to be called “critique,” is a potential “powerful constraint because judges care about their reputation, care about being (and not merely being thought to be) ‘good’ judges, respect the intellect and specialized knowledge of first-rate academic lawyers, and by virtue of their very independence are open to a wide array of influences, including those exerted by criticism …” He also observes that “academic critique of judges and judging has little impact these days on judicial behavior. This is not to say that academic scholarship has little impact on the law, including the law made by judges in their legislative role. But my interest in this book is not in how law professors create knowledge that finds its way into judicial opinions and hence into the law; it is in the law professor’s role as an evaluator of judicial performance whom judges take seriously.”

Chapter Nine – Is Pragmatic Adjudication Inescapable? – Judge Posner in this chapter enters the field of philosophy in looking at the meaning of pragmatism in the work of judging by considering the work of American philosophers who advocated a well developed philosophy of pragmatism – John Dewey, William James and Charles Sanders Peirce. They “advocated a radical empiricism in which propositions would be evaluated by their observable consequences rather than by their logical antecedents – advocated, in other words, an extension of the scientific method into all areas of inquiry.” The judge looked at the application of that school of philosophy on law and judging and observed: “The core of legal pragmatism is pragmatic adjudication, and its core is heightened judicial concern for consequences and thus a disposition to base policy judgments on them rather than on conceptualisms and generalities.”

Chapter Ten – The Supreme Court is a Political Court – This chapter has and probably will continue to cause some raised eyebrows. The argument is summed  up in the first sentences of the chapter: “ I have suggested that American judges are predestined to be pragmatists. But a more illuminating description of the justices of the U.S. Supreme Court, particularly when they are deciding issues of constitutional law, is that they are political judges, as I shall argue with reference primarily to cases decided in the Court’s 2004 term, the last term before the Court changed direction as a result of the replacement of Rehnquist and O’Connor by Roberts and Alito. But political judges are pragmatists if what is driving them is…the political consequences of their decisions.”

Chapter Eleven – Comprehensive Constitutional Theories –Judge Posner takes as his introduction to this very technical subject and “the inadequacies of the orthodox maerials,” references to a recent book by Supreme Court Associate Justice Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution. He comments about this book and its author:

A Supreme Court Justice writing about constitutional theory is like a dog walking on his hind legs; the wonder is not that is done well but that it is done at all. The dog’s walking is inhibited by anatomical limitations, the Justice’s writing by political ones.

Chapter Twelve – Judicial Cosmopolitanism – One of the more important chapters in the book, in fact the most important chapter in the opinion of this reviewer, is the the last chapter. This is an important chapter because it bears heavily on the question of “whether, or more precisely, in what circumstances - for what purpose, to what end - the Supreme Court [or even lower appellate courts] should cite a decision by an international and or other foreign court….The debate is over the as yet relatively few cases in which a foreign decision is cited for its precedential effect by judges (more particularly Supreme Court Justices) searching for a global  consensus on a issue of U.S. constitutional law. That search is the latest hopeless effort to ground controversial Supreme Court judgments in something more objective than the Justices’ political preferences.”

Judge Posner comments on the conundrum relating to the citing of foreign law:

I am not suggesting that our judges should be provincial and ignore what people in other nations think and do.   Just as our states are laboratories for social experiments from which other states and the federal government can learn, foreign nations are laboratories from whose legal experiments we can learn. The problem is not from learning from abroad; it is treating foreign judicial decisions as authority in U.S. cases, as if the world were a single legal community.

Since the world is not in fact a “single legal community” Judge Posner argues that foreign law, meaning international law and the law of other countries, cannot be used as precedent, meaning controlling precedent in U.S. constitutional cases. This approach certainly helps to clarify the issues in the debate, and helps resolve it.

Judge Posner ends with a Conclusion that summarizes the main points of his dissertation, most of which are presented above. More fitting to conclude this review is a quotation from the "Introduction" that appears on the back of the book jacket, which signals very well why it is important, picking up on an issue described at the beginning of this review:

I am struck by how unrealistic are the conceptions of the judge held by most people, including practicing lawyers and eminent law professors, who have never been judges – and even by some judges. This unrealism if due to a variety of things, including the different perspectives of the different branches of the legal profession – including also a certain want of imagination. It is also due to the fact that most 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…

This book parts the curtain a bit.