Judge Posner: …A judge never wants to take personal responsibility for a decision...he read these old documents, old cases and now he knows what the law is.
Jeff Berkowitz: [Are] Republicans now doing the sensible thing in not holding hearings on Judge Garland?
Judge Posner now is leading Revolution No. 2, legal realism over legal formalism...
The "Public Affairs," show, featuring Judge Posner in Part 2 of a two part series, airs tonight throughout the City of Chicago at 8:30 pm and midnight, on Cable Ch. 21 [CAN TV] (Comcast, RCN or WOW) and during the rest of the week in many of the Chicago Metro north and northwest suburbs, Evanston and Rockford [See, below, for a detailed airing schedule and partial transcript of this week's show].
Show host Jeff Berkowitz discusses and debates with Judge Posner in this week's "Public Affairs," show how the law really works.
--Judges look in the rear view mirror to decide cases, or so it is taught:
Central to the discussion is Judge Posner's lament that the American Judicial System is always looking backward and never forward, symbolized by the spittoons that still decorate the U. S. Supreme Court [as Judge Posner discusses in Part 1 of the two part series].
Really, he says, how can one expect to figure out whether flag burning should be constitutional by asking what First Amendment author James Madison or other founders thought.
"Flag burning" as protected free speech? Ridiculous is what Madison and other founders would say to that idea-- in a New York heartbeat.
The wide ranging discussion relates to the Judge's work as a professor... at the University of Chicago Law School, a 7th Circuit Court of Appeals Judge (1981 Reagan appointee to Present) and an author of more than 40 distinct books, 300 articles and book reviews and 3200 judicial opinions.
--Themes of the Judge's most recent book:
Some of the most significant parts of Judge Posner's recent book, "Divergent Paths, the Academy and Judiciary," are discussed at length during tonight's show.
An important theme of that book is that legal formalism-- also known as the traditional approach to law involving applications of precedents, legal reasoning, the common law, statutes and the Constitution to the problem at hand-- is what law schools teach as the way the law works in America.
Yet, most judges, contends Posner, decide cases based on legal realism, which is essentially the application of a common sense fairness doctrine to the facts at hand.
In that process, judges apply their own "Priors"--covering such things as their politics, religion and personality traits-- and a common sense fairness or equities approach -- to the facts to decide the case at hand.
And, then their law clerks dress up the analysis by referring to statutes, case law and/or the Constitution when the opinion is drafted for the Judge's often light editing and signature.
The above description of the American federal appellate process is true except for Judge Posner, who is one of the few judges to write the initial draft of an appellate judicial opinion. Really.
So, the description of what judges actually do is just one of the many ways in which the academic [legal formalism] and judicial [legal realism] paths diverge.
--Posner's Revolution No. 1, the Law and Economics movement
Judge Posner was a major leader in what Berkowitz calls Revolution No. 1, the infusion of the Chicago School of Economics into the study, teaching and practice of the law, which became the Law and Economics movement or discipline- and is now an integral part of almost all U. S. law schools.
UChicago Law School Posner worked very hard to promote and develop that revolution, starting in the late 1960s, alongside many of his colleagues in the economics department and the law school at the University of Chicago.
What all of the Chicago School economists and lawyer Posner had in common was a fervent desire to apply basic price theory to every nook and cranny of human behavior, which made law and economics a very broad area of study._
--Posner's Revolution No. 2, Legal Realism
Now, suggests show host Berkowitz, Judge Posner is leading Revolution No. 2, legal realism over legal formalism.
And, as part of that revolution, Judge Posner is pressing law schools to be more practical in their instruction and scholarly work, and to hire faculty with more practical legal experience.
The judge is also pressing his colleagues in all the appellate courts to be more candid in describing how they decide legal disputes.
--Impact of analytics and experience on judicial reasoning
Posner was drawn to Revolution No. 1 by analytics, with economics being applied to the law. However, it is his life experiences that seem to have led Judge and Senior Lecturer Posner to undertake Revolution No. 2.
So, to the extent Posner's views and intellectual bent have changed, that transformation seems to reflect his experiences-- the empirical evidence, so to speak. which is perhaps the way it should be.
Quips from tonight's show and scheduled airings of "Public Affairs" in other geographic areas are listed below:
Jeff Berkowitz: And, so, wandering into politics, which I know is not your focus as a judge, but you are somebody who knows this stuff so well…you’ve taught, you’ve written, you’ve been President of the Harvard Law Review, like our current President; you went to Yale, you clerked for liberal Supreme Court Justice Brennan, you were a conservative [appointed by Reagan]; you’ve now drifted left and out of all that, would it be your view that the [Senate] Republicans are now doing the sensible thing in not holding hearings on [President Obama's Supreme Court nominee] Judge Merrick Garland?
Judge Posner: Yes, because you mentioned Souter, Stevens and Blackmun, so they are good examples of what is called a stealth liberal because…
Judge Posner: The aspirant law school professors really don’t have time to get practical experience before they reach the age of 30 and figure they have to start teaching. So, they are very detached from the profession and that’s a weakness. You can have a few of those, that’s fine. But to have your faculty dominated with professors with no practical experience, I think it's very bad.
Judge Posner: …A judge never wants to take personal responsibility for a decision. He wants to somehow show that this is the “law,” and the judge is just applying the “law.” He has "discovered" the law. He read these old documents, old cases and now he knows what the law is. That is what judges like to do [and say]. But, that doesn’t mean that’s how they really decide cases, that’s not what is really moving them…
Berkowitz: And, in your book [Divergent Paths], what do you say is really moving them?
Judge Posner: Well, I call it your “Priors,”…it will be things like your temperament, your personality, are you vindictive--
Berkowitz: Your political views? Will your political views be part of your priors?
Judge Posner: Your political views will be a part of your priors.
Berkowitz: Your religious views?
Judge Posner: Yes, your religious views, we are seeing a lot of that in the Supreme Court now.
Berkowitz: Because there is such uniformity in religion on the Supreme Court now?
Judge Posner: No, I am talking about all the Catholics on the Supreme Court…
Judge Posner: The job description of a politician, including judges- any official…they can’t be frank, it would interfere with their role, they have to—
Jeff Berkowitz: Have a certain stature-
Judge Posner: Yes, they have to have a certain stature, respect and so on, so they are not going to be [candid]—and that’s certainly true of judges, but there are degrees of this and I think the judges… can be more candid [about why they really decided the case the way they did] without losing their authority.
The Public Affairs show featuring our second show with Judge Posner also airs:
--Tonight and Wednesday night in Evanston, Part 1 at 8:30 pm and Part 2 at 9 pm on ECTV-6 (Comcast).
--Tomorrow night in 24 N and NW Chicago Metro Suburbs (Comcast) at 8:30 pm on:
-----Cable Ch. 19 in Buffalo Grove, Elk Grove Village, Hoffman Estates, parts of Inverness, Lincolnwood, Morton Grove, Niles, Northfield, Palatine, Rolling Meadows and Wilmette and on
-----Cable Ch. 35 in Arlington Heights, Bartlett, Glenview, Golf, Des Plaines, Hanover Park, Mt. Prospect, Northbrook, Park Ridge, Prospect Heights, Schaumburg, Skokie, Streamwood and Wheeling.
--Thursday night in Rockford, 8:30 pm on Cable Ch. 17 (Comcast) and
--Wednesday night in 9 North Shore suburbs including Highland Park, Highwood, Deerfield, Kenilworth, Glencoe, Lincolnshire, Bannockburn, Ft. Sheridan and Winnetka at 8:30 pm on Cable Ch. 19 (Comcast)
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