Understanding how cases are decided: Legal realism/formalism; Stealth lib S. Ct. Justices: Berkowitz w/Judge Posner, Cable/Web

Jeff Berkowitz: And, so, wandering into politics... would it be your view that the Republicans are now doing the sensible thing in not holding hearings on Judge Garland?

Judge Posner: Yes, because you mentioned Souter, Stevens and Blackmun, so they are good examples of what is called a stealth liberal because…

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].

You can also watch the show with Judge Posner [24/7] by clicking here.

Show host Jeff Berkowitz debates and discusses with Judge Posner in this week's "Public Affairs," show how the law really works. 

The wide ranging discussion relates to the Judge's work as a professor (1969-81) and senior lecturer (1981 to Present) at the University of Chicago Law School, a 7th Circuit Court of Appeals Judge (1981 to Present) and author of more than 40 books (and 56, if different editions are considered separate books), 300 articles and book reviews and 3200 judicial opinions.  

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 the book is that legal formalism, or 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. 

Yet, most judges, contends Judge Posner, decide cases based on legal realism, which is essentially the application of a common sense fairness doctrine, but incorporating the judges' priors--covering such things as their politics, religion and personality traits-- to the facts at hand.

In discussing the U. S. Senate Republican majority's decision not to hold a hearing on Judge Garland's nomination to the Supreme Court, at least not until after the November election, Berkowitz argues  this is a legal decision, based on the fact that the U. S. Constitution sets no limit on when the U. S. Senate must "Advise and consent," after the President has nominated a Supreme Court Justice.

Judge Posner seems to suggest that the analysis of this matter may involve more politics than the law.  Berkowitz responds that, as a legal realist, you can't separate the two.

Judge Posner was a major leader in what Berkowitz calls Posner 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.  

Judge Posner worked very hard  to promote and develop Revolution No. 1, starting in the late 1960s, alongside many of his colleagues in the economics department and the law school at the University of Chicago, including,without limitation, Professors Landes, Becker, Coase, Friedman, Stigler, Pashigian, Demsetz, Kessel and many others (including Aaron Director at Stanford in the 60s and 70s).

Posner, Landes, Becker and Coase were more directly involved in Law and Economics, with Friedman and Stigler having an impact on that field of study as " Major league price theorists," and Stigler, Pashigian, Demsetz and Kessel  impacting  Revolution No. 1 through their work in Industrial Organization, a major field of study at the University of Chicago at the time.

What all of the aforementioned 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.

Now, suggests show host Berkowitz, Judge Posner is leading Posner Revolution No. 2, legal realism over legal formalism, and as a part of that revolution, Judge Posner is pressing for law schools to be more practical in their instruction and scholarly work and judges to be more candid in describing how they really decide legal disputes.

Berkowitz argues and Judge Posner seems to agree that much of Judge Posner's belief in  Revolution 2, legal realism,  results from his own life experiences clerking for Supreme Court Justice Brennan, working in the Solicitor General's office under Thurgood Marshall for two years, working with FTC Commissioner Phil Elman on antitrust matters for two years, sitting as a trial judge from time to time in the U.S. District Court (Northern District of Illinois) and being an appellate judge on the 7th Circuit for the last 35 years.

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.

Plaintiff's workers' comp. trial lawyer Matt Belcher (show 1 of 2) is the featured guest next week on "Public Affairs."

You can watch the first show w/ Judge Posner 24/7 by clicking here.

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 Judge 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 at 8:30 pm on ECTV-6 (Comcast)

--Tonight 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)

--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)

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