International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Winter 2014 Issue

In Review:
Recent Publications on International and Comparative Law and About Judges and Courts


Reflections on Judging
By Richard A. Posner. Harvard University Press. 2013

Reflections on Judging

Reviewed by: James G. Apple, Editor-in-Chief, International Judicial Monitor and President, International Judicial Academy

Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit has a significant judicial legacy other than deciding cases and writing opinions. He has written more than 30 books (and many articles for legal journals) over the past 40 years on a variety of subjects that include sociological and political topics as well as law and judging. It would not be an exaggeration to characterize Judge Posner as a polymath, so wide are his areas of expertise. And while his books rarely reach the status of New York Times best seller, they nevertheless are always well written and thought provoking. His current effort, which is part autobiographical, is no exception; in fact it may be one of the most useful books for judges, court officers and government officials that he has written. And although Judge Posner writes from the perspective of a federal appellate judge discussing issues that have arisen in the federal courts, many of his insights and comments are valuable to all judges, appellate and trial, federal and state, including judges from foreign jurisdictions.

The title of this book may be misleading – one might assume from Reflections on Judging that it is only a discursive account of his judicial life looking back on a bench career that spans over 31 years. But it is not. He is selective in the issues he addresses, and he addresses them in most instances in well written, easily understandable prose.

In the beginning of the book, which is the autobiographical section, Judge Posner estimates that he has heard more than 6,000 oral arguments and written more than 2,800 published opinions. He writes:

I may be a good judge, a bad judge, or an indifferent judge, but I am undeniably an experienced judge, though my experience is limited to the federal judiciary.

And so his “reflections” are based on his long experience on the bench. There is a definite focus in this writing, which might be termed “serious problems that are facing the federal judiciary.” Certain themes stand out, themes that are in the nature of, first, descriptions of serious problems that have arisen in the courts over the past 20 years, and, next, suggestions for reform that are applicable to not only the federal judiciary but also to state judges and court systems in the United States and judges and courts in general.

In the Introduction Judge Posner describes the book as one that “mixes the academic with the personal; it is a study of the judicial process mixed with personal recollections, references to a number of my own judicial opinions, and recommendations to judges and judicial administrators.” Judge Posner’s focused commentary concentrates on the following themes, which correspond roughly to the chapter headings:

  1. Complexity, which he divides into two major parts because of the context in which they arise. One is external to the judiciary that presents issues  for judges because they occur in cases that judges decide. The other type is internal to the judiciary, because it relates to the judicial process, judicial organization and judicial management. These subjects are covered thoroughly in the 50 pages of the third chapter titled “The Challenge of Complexity” and issues relating to it.

  2. The relationship and growing gap between the judiciary and academe. Judge Posner taught in law school before his judicial career began and he has continued to teach as an adjunct professor, so he can comment competently on this subject.

  3. The evolution of the judiciary. Judge Posner devotes one short chapter to a description of how the federal judiciary has changed over a period of 50 plus years, not just in terms of case filings, judicial case loads and the increase in the complexity of cases, but also how these changes have affected the quality of judicial work.

  4. Judicial management. Judge Posner was the Chief Judge of the U.S. Seventh Circuit of  Appeals for seven years so is in a good position to comment on this aspect of the judiciary that has drawn little attention and less commentary in law reviews, law journals and legal and judicial magazines.

  5. Interpretation and judicial restraint. The judge confronts these controversial topics with definite ideas about where the federal judiciary should be headed. He is strong in his support for judicial realism and is definitely at odds with the so-called originalism school of interpretation best personified by U.S. Supreme Court Associate Justice Antonin Scalia, with whom he disagrees strongly.

  6. Judicial formalism and judicial realism. The issues here are closely connected with the interpretation approach of judges, but they arise and are discussed in chapters dealing with other subjects. Judge Posner is a judicial realist and explains fully why he subscribes to that school of thought.

  7. Judicial education. This issue is closely related to almost all of the other themes of the book, especially complexity.



There are also other minor themes that are addressed, such as the evolution of the federal judiciary, records on appeal, expert witnesses in trials, internet research, and opinion writing, but these topics have relevance to and are discussed in the context of the main themes described above.

Although in the wider world complexity is a subject that has been investigated and discussed with growing frequency, it is not often a subject of discussion in the legal community. Judge Posner is one of the few judges, and possibly the only one, who has seriously addressed that issue and its effects on the legal system, especially effects on court cases and judging. That it is of importance to him is shown by the fact that he devotes one 50-page chapter to the subject, one of the longest chapters of the ten chapters in the book.

Complexity is an important issue for all judges in the new century. It not only now invades many court cases (medical negligence cases, antitrust cases, intellectual property cases, business and commercial cases, criminal cases - especially criminal sentencing matters - and technology cases) but it has become an increasingly important issue in the management of courts and judges. Judge Posner’s message, one of urgency, is that judges are not now equipped to deal with these developments. He points out that lawyers, almost by definition, are not skilled in assessing and resolving complex issues and are not skilled managers. A great many lawyers, including those who eventually end up on the bench, are refugees from science and technology studies in college – many started with a scientific or technical career as a goal and eventually dropped out and opted for law school (the writer of this review included). This lack of technical and management skills is having and will have an adverse effect on the quality of justice that comes out of the courts.

What are the remedies for this state of affairs? In the tenth and final chapter, Judge Posner brings his insights to bear on the issue of resolving some of the pressing issues raised in his book. The solution is a greatly expanded and strengthened effort in judicial education, from initial education courses for new judges to continued legal education programs for experienced judges. He comments about this need as it relates to judicial management skills:

The limited character of judges’ initial training contributes both to the passivity displayed by many judges and their frequent lack of good management skills. Poor management is a major factor in the frequent long delays between the oral argument of an appeal and the issuance of the opinion deciding the appeal, and at the district court level  in long delays in bringing litigation to conclusion.

The Federal Judicial Center (FJC) is the agency of the judicial branch of the United States government charged with the responsibility of  educating judges. Judge Posner, after noting that the budget of the FJC has experienced cuts in recent years, argues that the “Federal Judicial Center should be given the resources it needs to enable it to do more than it can do at present to provide management training to federal judges and to improve their understanding of the technological and other complexities that bear on their work.”

Judge Posner doesn’t end his book with an appeal to more and better judicial education - although that is clearly one of his objectives in writing the book. He concludes by making a plea for a return to judicial realism, “the path forward,” as the ultimate remedy for a lot that is wrong with the federal courts, and with U.S. courts in general. Judicial realism is to be preferred over the other approaches to interpretation and application of law, such as originalism, textualism, and other “isms” which have been inflicted on the legal community at large, and on the judiciary specifically, by academic writers and even Supreme Court justices. He describes what he means by judicial realism:

All that legal realism ought to mean – all that it means to me – is making law serviceable by bringing it closer, in point of intelligibility and practical utility, to the people it’s supposed to serve, which is the population as a whole. It ought to be possible to decide most cases in a way that can be explained in ordinary language and justified as consistent with the expectations of normal people. This requires judges to understand what is really going on in the cases they hear, which is increasingly bound up with technology. In this endeavor they will be hindered, not helped, by the canons of statutory construction, by invisible and unwritten constitutions, by the Bluebook, by ghostwriter law clerks, by legal jargon, by multifactor tests, by multiple standards of appellate review, by prolixity, by quotation out of context.

So, in the final analysis, education is the key. The way to judicial realism of the Posner type is for judges to be exposed to sound and sufficient legal and judicial education programs so that the path forward becomes clear. Perhaps the best way to begin such an effort is to require all judges, as the initial part of their judicial training, to read Judge Posner’s excellent book.

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© 2014 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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