How Judge Posner Thinks Judges Should Think
Fair Courts E-lert
Bibliographic Info:
Author: Edward Whelan
Source: National Review Online
Date: 4/17/2008
In his essay, Edward Whelan reviews Seventh Circuit Judge Richard A. Posner's book, How Judges Think. Whelan writes that despite Posner's aim to offer a realistic account of how judges arrive at their decisions in non-routine cases, his book "offers much less insight about how judges actually think than about how Judge Posner thinks judges should think." In his book, Posner argues that because legalism depends on "choices that entail the exercise of legislative-like judicial discretion," the idea that legalism gives judicial decision-making "the appearance of judicial rigor" is false." Whelan disagrees, writing that, although the "interpretive rules that legalists adopt cannot all be derived," he does not believe that the result leads to "open-ended "legislative-like judicial discretion.""