BOOK REVIEW Parting the Curtains:
Posner on Judges and Judging Reviewed by Ellen Swain Veen
While the stark and serious dust jack- et of the hardbound edition of Richard A. Posner’s book does little to entice a read- er, the prolific author and noted U.S. ap- pellate judge snagged me on the second page with a promise to “part the curtains a bit” on the character of a judge. His motivation? Judges, he admits, “are coy” (p. 2).
I was hooked. I poured myself a cup of tea, turned up the reading light, and de- voured the book in two sittings. I’m glad I spent the time. Posner’s point is to dismantle what he calls the legalistic conceit: the premise that judges are merely legal technicians issuing rulings reached by precise and slavish ad- herence to precedent. While in some in- stances the logic of controlling law de- mands a precise result, those cases do not account for all judicial decision making. A gap remains where precedent is inad- equate and political and personal ideolo- gies play a role. Claims to the contrary by the Supreme Court and attempts to hide behind adherence to theories of constitu- tional interpretation and deny any political or personal preferences are specious, he maintains. His favorite targets are the Su-
preme Court and law school faculty. Posner tackles his subject with a voice at turns witty, sardonic, and strong. The writ- ing is clear and engaging. His unique voice both surprised and drew me through to the book’s conclusion. In a less apt writer’s hands, the book would read as a screed. Posner, a noted legal scholar, respect- ed jurist, and author of more than forty books, is a Circuit Judge on the United States Court of Appeals for the Seventh Circuit and a senior lecturer at the Universi- ty of Chicago Law School. He is intrinsically linked with the law and economics move- ment
How Judges Think Richard A. Posner
Harvard University Press; 2008; 387 pp.; $29.95
The book is structured in three parts. In the first part, Judge Posner offers nine the- ories of judicial behavior and then explores the ideas of the judge as a labor-market participant and as a legislator. In the sec- ond part he elaborates on the model in five chapters one could read as distinct essays. In the third part, he gives a critique of the Supreme Court.
In some sections, Posner dips into de- tailed discussions, such as his discussion of
Kelo v. City of New London,1 involving emi-
nent domain to transfer property for eco- nomic development. At other points, his writing treats his material as a broader pol- icy issue: evaluating judicial performance in a system intrinsically lacking measures for gauging excellence. My favorite section was his insightful writing about judicial sal- aries and his thoughts about the non-pecu- niary benefits a judge derives from the job as compared to a job in private practice. The book reads as if it were a set of linked essays. Part of my delight in read- ing the book comes from Posner’s per- spective and his engaging voice. I did not feel as if he was trying to persuade me. I didn’t agree with all of his opinions, but he doesn’t demand his reader agree with him. He doesn’t aim to persuade; he aims to elucidate. Posner fulfils the promise he set out in the first chapter, to lift the curtain and offer the reader a view from his van- tage point, one cultivated over three de- cades on the bench. It’s a glimpse into a rarefied world by a keen and finely tuned mind.
____________________ Ellen Swain Veen is a former Assistant
Professor and Director of Academic Suc- cess at Vermont Law School. An award-win- ning playwright, she’s currently revising her first novel, I Dreamed the Guru Killed Me. Her website is:
ellenswainveen.com.
____________________ 1
545 U.S. 469 (2005).
40
THE VERMONT BAR JOURNAL • FALL 2011
www.vtbar.org
Page 1 |
Page 2 |
Page 3 |
Page 4 |
Page 5 |
Page 6 |
Page 7 |
Page 8 |
Page 9 |
Page 10 |
Page 11 |
Page 12 |
Page 13 |
Page 14 |
Page 15 |
Page 16 |
Page 17 |
Page 18 |
Page 19 |
Page 20 |
Page 21 |
Page 22 |
Page 23 |
Page 24 |
Page 25 |
Page 26 |
Page 27 |
Page 28 |
Page 29 |
Page 30 |
Page 31 |
Page 32 |
Page 33 |
Page 34 |
Page 35 |
Page 36 |
Page 37 |
Page 38 |
Page 39 |
Page 40 |
Page 41 |
Page 42 |
Page 43 |
Page 44