Judge Posner delivered a keynote address discussing the role of judges in the 21st century. He outlined three main challenges: 1) keeping up with increasing scientific knowledge, 2) dealing with huge caseloads in federal courts, and 3) the future functions of artificial intelligence in adjudication. Posner argued judges should be more pragmatic than formalistic. He also discussed differences between how US and European judges operate, and said political preferences alone do not fully explain judicial decisions due to various contextual factors judges must consider.

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LEGAL THEORY
JUDGE POSNER ON THE ROLE OF THE JUDGE
Richard A. Posner (2006). ‘The Role of the Judge in the Twenty-First Century,’ Boston
University Law Review, Vol. 86, pp. 1049-1068.
INTRODUCTION
This essay reviews the main points raised by Judge Richard A. Posner of the U. S.
Court of Appeals, Seventh Circuit, Chicago when he delivered his keynote address
in a symposium at the Boston University School of Law on April 21, 2006. The topic
of Judge Posner’s address was the role that judges will play or ought to play in the
judicial system of the 21st century. Judge Posner begins by noting that the role that
judges play will vary depending on which school of legal thought is being asked to
define the role of judges. Needless to say, Judge Posner is mainly describing the role
that judges will play in the appellate judiciary. Judge Posner concludes his analysis
of the judicial role by stating that judges ‘should be less formalistic and more
pragmatic.’ What Judge Posner means by this is that judges should be less legalistic
and more attentive to the consequences of their decisions when they adjudicate.
Judge Posner describes the scope of his paper as an attempt to delineate three
important points on the state of the judiciary rather than to predict the future of the
judiciary in the United States and Europe. Those three points are the following: the
challenges that will be posed by the increase in scientific knowledge to judges; the
huge increase in the case load in federal courts; and the function of artificial
intelligence and data mining in adjudication in the years to come. To elaborate a bit
on these points, the first is obvious since it will not only affect judges but all
professions since it is not easy to keep pace with science. The second pertains to

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whether the federal judiciary should stay generalist in its orientation like in the
United States or seek a specialist model like that which prevails in Europe. Judge
Posner feels that this may well be the case in the future given the number and
complexity of cases; specialist courts will be much more efficient in disposing off
cases than generalist courts. And, finally, the use of computers, artificial intelligence,
and data mining techniques will make it easier to model judicial philosophies using
algorithms. In order to do this, data mining techniques will study the opinions
written by judges and continuously update the patterns that can be discerned by
mining them. This will change what we mean by a judicial opinion and make the
presence of a human judge less necessary than before at least in the disposal of the
routine lot of cases. It will also make it easier to predict how judges will resolve any
given case.
JUDGES AND LAW FACULTY
In terms of the present situation, Judge Posner feels that law faculty do not
understand judges at all. This is a recurring theme in his work because he feels that
law faculty and judges are moving in opposite ideological directions. This could also
be because of the analytic distinction between the ‘is’ and the ‘ought’ in defining the
role of judges. Judges are what they are but there are specific models of judges that
law faculty have in mind which does not correspond to the reality of the judicial
function. That is because law faculty have never been judges with a few exceptions
and what they want of the law and the judicial function does not correspond to what
judges do on an ongoing basis in the courts.1 An important part of the difference is
that law faculty deliberate in open fora like classrooms and law journals; but judges
deliberate, if at all, in secret. Americans have high expectations of what forms such
deliberation should take in the courts, but English judges were often reluctant to
deliberate even in private since that would violate the judicial norm of ‘orality.’ That
is also why English judges issue ‘seriatim’ opinions rather than speak in one
1 This is a theme that Judge Posner has taken up elsewhere. See, for instance, Richard A.
Posner, ‘Judges are not Law Professors,’ How Judges Think (Cambridge: Harvard University
Press, 2008), pp. 204-229.

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consolidated opinion with few or no dissents. Judge Posner poses this as an
important distinction between the fondness of law faculty for the model of judicial
deliberation and the fact that judges’ dislike deliberation or prefer to deliberate in
private in actual cases.2
LEGAL FORMALISM
Furthermore, there are different conceptions of the function of formalism in
adjudication. Definitions of formalism however vary. The best known is the analogy to
umpiring baseball games. Judge Posner however thinks that formalism is a lot more
complex since unlike baseball where the rules of the game are pre-given, judges have
the additional responsibility of having to make up the rules as they go along. The
sources of these rules include the constitution, statutes, and the common law. These
legal materials are necessary to determine the rule that is applicable in any given
case but not necessarily sufficient. That is why formalists need meta-rules; these
could include approaches that have been described as originalism, textualism, moral
conception, active liberty, and so on. These materials are not to be found within the
legal materials themselves; argues Judge Posner, but are used to ‘interpret’ the
materials. Formalism however gives the impression that these rules are ‘internal’ to
the discourse of the law. In other words, it is a lot easier to umpire baseball games than to
adjudicate complex cases. Judge Posner however does not explain the origin of baseball
rules and whether these rules are ‘internal’ or ‘external’ to baseball. I think this point
is germane to his critique of the umpire analogy. An empirical examination of the
evolution of baseball rules could show either that baseball is a lot more complex than
we give it credence for or that the law is a lot less complex than we think it to be. In
2 For a succinct account of deliberation, see Aristotle, ‘Deliberation,’ The Art of Rhetoric,
translated by Hugh Lawson-Tancred (London: Penguin Books, 2004), pp. 83-103. The law
professor who has done the most in recent years to relate the importance of deliberation in
legal rhetoric within American legal theory and law schools is Anthony T. Kronman in The
Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge and London: Belknap Press,
Harvard), passim. The main point that Dean Kronman makes in his book is that the declining
importance accorded to the model of deliberation in legal and political rhetoric is related to
the disappearance of the ‘lawyer-statesman’ as an ideal in the legal profession in the United
States.

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either case, Judge Posner’s aim is to explore the limits of the baseball umpiring
analogy that is associated with the confirmation hearings of Chief Justice John
Roberts of the U. S. Supreme Court.
ATTITUDINALISM & PRAGMATISM
The opposite of formalism, argues Judge Posner, is attitudinalism; this amounts to
saying that judges are partisan and ‘vote their political preferences’ into the law. A
more refined version of this model simply substitutes ideology for party affiliation.
But the problem with this approach to evaluating or predicting how judges will vote
is that not all cases will have political or ideological implications that attitudinalists
are on the lookout for. The relevant variables in such attempts at ‘forecasting’ have
already been identified and do not have anything much to do with the law as such.
The approach that Judge Posner himself favours is pragmatism; the most important
aspect of pragmatist approaches to adjudication is ‘the judicial imperative…to
decide cases with reasonable dispatch.’ This is required even in cases that are not
easy; and while the attitudinalist model will explain some of these cases, it won’t
explain all of them. The problem with such a reductive approach is that there are
many factors that have to be kept in mind like statutes, precedents, the levels of
knowledge required to adjudicate, the court’s reputation, the need for consistency,
stability of the legal system, and so on. Besides, judges have a lot of discretion in
matters pertaining to whether or not to invoke precedents in any given case. So it is
not always possible for judges to find an ‘applicable rule’ or ‘vote in’ their political
preferences. If only rules and political preferences mattered, all cases can be resolved
with an algorithm. It is a however a lot more difficult than that to resolve cases
whether what we are doing is monetary policy or adjudication since it takes a
human mind to exercise the function of ‘constrained discretion’ rather than apply
rules without being attentive to the specific contexts of the law. This is the famous
‘rules versus discretion’ problem; it occurs in law, economics, and public policy.3
3 See, for instance, Rik W. Hafer (2005).‘Rules versus Discretion,’ The Federal ReserveSystem:
An Encyclopaedia (Westport,CT & London: Greenwood Press), pp. 342-345.

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THE UMPIRE ANALOGY
The relationship between formalism and pragmatism is interesting since it may be
necessary to invoke formalism itself as a pragmatist strategy on any given occasion.
We must therefore be attentive to the rhetorical function of formalism. It was probably a lot
easier for Chief Justice John Roberts to invoke formalism to explain the role of a
judge, as comparable to that of a baseball umpire, in his confirmation hearings rather
than to plunge into the varied contexts in which he might have to invoke additional
factors while judging cases. It is therefore not necessary to take his analogy of the
baseball umpire in the ‘literal’ sense, but to situate the rhetorical function that it
served in his successful confirmation hearings.
It would have been an error if Chief Justice Roberts had treated the confirmation
hearings like a law school seminar. Judge Posner’s reasons for invoking the umpire
analogy at length really is to explain the differences between the forms of legal
reasoning that characterize law faculty, formalist judges, and appellate judges. The
last of these roles requires explanation since it subsumes the function of judges and
legislators; this relates to the area of ‘judge-made’ law. However the judiciary can
only tell the government what not to do rather than what to do since to implement
any judicial decision requires the support of the executive authority. That is why
judges had difficulty with the actual administration of their decisions when they
tried to implement busing programs after they decided to de-segregate the public
school system in the United States. Judges however have more leeway within the
common law since there is a much higher level of consensus both within society and

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in the judiciary on what a judge decides in any given case. That is because the
common law is less likely to have important implications for public policy.
JUDGES IN AMERICA & EUROPE
Judge Posner then compares the difference between judges in the United States and
Europe.
In the latter, judges are more like civil servants since they constitute a career
judiciary unlike in the United States where ‘lateral’ entry into the judiciary is the
norm. American judges are therefore more ‘individualistic’ in their approach to
adjudication than European judges. Furthermore, European judges are more likely
to be working with statutory codes with fewer gaps than American judges in the
common law tradition. So they are more likely to be rationalistic and less pragmatic
in their approach to adjudication. European judges are also less likely to serve a
legislative function; the American appellate judiciary however combines the judicial
function with the legislative function. That however does not mean their voting
preferences are easy to understand since the judicial function is less susceptible to a
utility analysis. That is because judges do not respond to the usual kind of
‘incentives and preferences’ that economists use to determine how workers make
choices in any given situation. It therefore does not make much sense to say that
judges work hard because they want ‘leisure’ or to become ‘celebrities.’ It is more
likely to be the case that they either want to ‘make things better’ or they want to
‘play the judicial game.’ Or, to put it more simply, a judge must like being a judge and
must believe that the exercise of the judicial function can make things better for the
litigants in particular and the legal system as a whole. If he doesn’t, it is difficulty to
go on given the pressures that a judge is subject to on a daily basis.

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ON ‘CORRECTIVE JUSTICE’
An important element of the judicial protocol, as Judge Posner understands it, is the
need for ‘corrective justice.’ This is a legal term from Aristotle. It basically means that
judges decide specific cases and do not decide between parties as such; the rule of
law depends on their being able to do so. But, in addition to deciding between the
litigants, the judge also encounters the problem of ‘representative parties.’ What this
means is that judges must also think in terms of ‘prosecutors and defendants’ and
not necessarily in terms of the conflict between specific litigants. That is, for judges,
there is both a specific and a generic aspect to adjudication. This is where their
ideological preferences may seep in unconsciously when they attempt to resolve cases.
Political theorists have also started to study judicial behaviour from the strategic
point of view; that is, there is ‘competition’ between the different branches of
government in their attempts to define the law and what constitutes the acceptable
range of policies in any given context within the political system. There is bound to
be differences in approaches between the legislative and the judicial function in any
given democracy. The work of judges is therefore not reducible to rules; they
exercise their discretionary authority over what cases they will hear, when, and how
many times before they finally resolve a case. The discretionary power of judges
then will also involve them in forms of ‘legislative determination.’ When judges
decide, they draw upon both ‘systemic and individual’ aspects of their judicial
function. The former refers to their over-all judicial philosophy and the latter to case
facts. English judges for instance differ in their approach to adjudication based on
whether they serve in ‘common law courts’ or ‘courts of equity.’4 American judges
who are legalistic in their approach will be more likely to avoid equity and go with
the law even if it will lead to an unjust outcome. This also means that they will often
vote against their own political preferences in deference to statutory law or existing
precedents within case law. American law does not formally recognize the difference
4 For a lucid account of the differences between common law and equity in English law, see
‘The Court of Chancery and the System of Equity,’ H. G. Hanbury and D. C. M. Yardley
(1979). English Courts of Law (Oxford and New York: Oxford University Press), pp. 93-106.

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between chancery and equity (though conservative judges are thought to like the
former approach and liberals the latter).
SOURCES OF JUDICIAL IDEOLOGY
In any case, the question of political preferences does not explain as much as we
would like it to since most political parties and their ruling ideologies are less
unified and more in the shape of coalitions. These ideological coalitions are always
shifting. Furthermore, judges usually serve longer than the legislature that appoints
them to the bench. Dividing judges into categories that are ‘pro-government’ and
‘pro-defendant’ - in their orientation towards criminal law - however helps to
explain judicial behaviour to some extent in ‘close cases.’ That is why the ideology of
judges is a fascinating area of study. The main sources of judicial ideology, according
to Judge Posner, are ‘moral and religious values.’ These sources however will be
mediated by the life experiences of a particular judge and will not affect all judges in
the same way. That is why legal scholars like Jan Deutsch emphasize the need for
looking into the forms of ‘political socialization’ that go into the making of a judge.
Only then will we be able to anticipate, explain, and understand how a judge will
use his discretionary power in cases that involve ideological implications. In order to
do this, legal scholars will have to take institutional differences between the
legislative and judicial function seriously in their analyses.
CONCLUSION
Judge Posner also alludes to studies on ‘authoritarianism’ to consider whether that
will make a judge liberal or conservative in his orientation. Psychologists, for
instance, have considered whether authoritarianism is related to ‘maladjustment in
childhood’ and whether judges can be made more open-minded in their approach to
judging; and, if so, how. Judge Posner even considers Jerome Frank’s suggestions on
how a personal psychoanalysis might make a difference to the judiciary before he
moves on since that is not easy to implement or even necessary in Judge Posner’s
view.5 And, finally, Judge Posner considers the fact that judges come across as
5 Consider, for instance, a similar proposal that was made in politics that politicians should
be psychoanalyzed. Jacques-Alain Miller has argued that psychoanalysis should not aspire

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‘callous.’ This, he believes, is common to most professions and not only judges. In
the case of judges, it is because they know that ‘hard cases make bad law.’ Being
callous however is not the same as being detached – Judge Posner invokes, finally,
the instance of Justice Holmes who was accused of being both. In Justice Holmes’
case, the advantage of being detached was that he felt that he did not have all the
answers and was therefore much more deferential to the government and other
branches of government than might have otherwise been the case.
Judge Posner concludes that we must include the ‘personal, the emotional, and the
intuitive’ dimensions of the judicial process if we want to understand how judges
think, behave, and decide lest they read their preferences knowingly or
unknowingly into the law and the constitution.
SHIVA KUMAR SRINIVASAN
to be a ‘dominant’ discourse; it should recognize its practical limits in the public sphere.
Jacques Lacan did not believe that such a psychoanalytic discourse in the locus of the
dominant – assuming that it were possible – would be a good thing. See Jacques-Alain
Miller (2013). ‘Everyone is Mad,’ We’re All Mad Here, edited by Jacques-Alain Miller and
Maire Jaanus (Minneapolis and London: University of Minnesota Press), Culture/Clinic
Series, Vol. 1, Applied Lacanian Psychoanalysis, Vol. 1, pp. 17-42.