How Judges Think by Richard A. Posner

How Judges Think by Richard A. Posner

Author:Richard A. Posner [Posner, Richard A.]
Language: eng
Format: epub
ISBN: 9780674028203
Publisher: Harvard University Press


8

Judges Are Not Law Professors

The external constraint on judicial behavior that is most compatible with a judiciary as independent as our federal judiciary is academic criticism, since it is noncoercive. It is potentially a 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, that would have little impact were judges subject to the powerful incentives and constraints of employees who lack the independence of a federal judge. Actually a better word than “criticism” in this context is “critique.” Judges would benefit from praise that indicated where they were doing a good job as well as from criticism, and judges who were not praised would learn from the praise of others where they were falling short.

Yet academic critique of judges and judging has little impact these days on judicial behavior.1 This is not to say that academic scholarship has little impact on 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.

There are two reasons that academic criticism does not much affect judicial behavior. One is that although judges indeed care about whether they are doing and are thought by certain others (other judges, for example) to be doing a good job, they do not care greatly what law professors think of them. The other reason is that law professors are not much interested in evaluating individual judges, except Supreme Court Justices—who are the last judges to care about how they are thought of in the groves of academe. Beneath these specific reasons for the ineffectuality of academic critique of judicial performance is a deeper one—the alienation of the elite law professor from legal practice, including judging.2

Judicial insensitivity to academic criticism derives in part from the differences between judges and professors in working conditions, incentives, constraints, selection, outlook, and social role. Many judges think that academics do not understand the aims and pressures of judicial work and that as a result much academic criticism of judicial performance is captious, obtuse, and unconstructive. This sense is shared even by appellate judges, engaged in the quasi-scholarly work of opinion writing, including appellate judges appointed from the professoriat.

Apart from the courts of appeals for the Federal Circuit and to a lesser extent the District of Columbia Circuit, the jurisdiction of the federal courts of appeals ranges over virtually the entirety of federal civil and criminal law, and, by virtue of the federal diversity jurisdiction and federal habeas corpus for state prisoners, over virtually the entirety of state law as well, plus bits of foreign and international law.3 No judge



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