Judge Richard Posner's book "How Judges Think" analyzes the thought processes of judges and seeks to understand judicial behavior. The book is divided into three parts, with the first examining the basic model of judging, the second elaborating on this model, and the third analyzing theories of law that justify judicial decisions. Posner argues that pretending the judicial function is simply dealing with cases is naïve, as judges also occasionally serve legislative functions by developing law. The book explores various theories of judicial behavior and constitutional interpretation, seeking to understand differences in how judges, justices, and legal academics approach the law.

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BOOK REVIEW
Richard A. Posner (2007). How Judges Think (Cambridge: Harvard University Press),
pp. 387, ISBN 978-0-674-04806-5
Richard Posner is a Circuit Judge at the Court of Appeals, Seventh Circuit, Chicago
and a Senior Lecturer in Law at the University of Chicago. Judge Posner is best
known for his pioneering work in ‘law and economics’ or the ‘economic analysis of
law.’ This book from Harvard University Press brings together his thoughts on ‘how
judges think.’ Some of these essays have appeared previously in leading American
law journals. This book should be of interest to students of law, teachers of law, and
to the members of the American judiciary. It will also be of interest to those who
want to learn from the history of American law to improve the quality of legal
services in their part of the world. There are three parts to this book. The first part
sets out ‘the basic model’ of judging; the second part elaborates on the basic model;
and the third part analyses the thought patterns of justices in the U.S. Supreme
Court and elsewhere. There are four essays in the first part; five essays in the second
part; and three essays in the third part. Judge Posner also considers the relationship
between American law, English law, and the legal systems in Europe. His reason for
doing so is to ask if the attempt to forge a ‘cosmopolitan’ approach to law is feasible
and; if not, what is indeed unique to American law. In other words, should American
judges stick it out within a model of American exceptionalism? Or, should they try to
influence and be influenced by constitutional courts in different parts of the world
that have a resemblance to the American system? Furthermore, is it actually possible
to define what exactly the American system is? Is it not rather the case that the
American approach to law, the constitution, and the legal system is a collection of
approaches rather than something that can be isolated for the purposes of
comparison with foreign systems? These then are some of the important questions
that Judge Posner takes up for analysis in this book. Another way of describing the
layout of the book is to point out that the first part is about what judges do; the
second part is about the internal and external contexts in which they do what they
do; and the third part is about the theories of law that justify what they do and the
circumstances in which they do what they do. Another possible title for this book is

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‘What Judges Do.’ That might have been a better title given that Judge Posner is a
sceptic in his theoretical orientation. Furthermore, while we have to infer how judges
‘think,’ we can see what they do or do not do in oral argument, delineate their
patterns of ‘discretionary determination,’ and attempt to situate them from an
ideological point of view.
The topics that Judge Posner covers include the theories of judicial behaviour; the
role played by judges as participants in the labour-market, the legislative function –
albeit occasional – of judges; and the thought process of the judge when he furthers
the legislative (as opposed to the usual judicial) function. The difference between the
everyday judicial function and the occasional legislative function to fill in the gaps in
the law is an important preoccupation in Judge Posner’s approach to describing how
judges actually think. To pretend that the judicial function can be described
reductively as no more than dealing with cases is, he argues, a form of naïveté. Many
judges are forced to go along with this naïve model because the lay person lacks
sufficient exposure to understand the legislative function or the interpretive
dimensions of the judicial function. That is why in the interest of intellectual honesty
it is important to understand the similarities and differences between the legislative
and judicial functions. That is what Judge Posner does in the first part of this book. It
is important to note that Judge Posner is ‘eclectic’ in his method. He notes that there
are as many as nine theories of judicial behaviour and that none of them can describe
the judicial function in its entirety. Being pragmatic in orientation means to know
when to invoke which of these theories and to what effect. The question of whether a
‘comprehensive’ theory of judicial behaviour of constitutional interpretation is
possible or not is one of the topics that greatly interests Judge Posner. This is a topic
to which he returns in part three when he considers theories put forth by Justices of
the Supreme Court on what constitutes consistency and validity in constitutional
interpretation. What compels Judge Posner in analysing some of these topics is the
fact that law faculty and the judiciary do not think alike on many of these areas. He
bemoans the fact that law faculty do not have sufficient exposure to the judicial
function – unless they happen to have served as law clerks to leading judges or
justices. That is a cause for concern because law faculty in American law schools
spend the better part of their careers reading and teaching judicial opinions. The
endemic gap between those who teach law and those who judge cases is something
that has to be thought through in order to understand how the legal system really
works. That is why, Judge Posner argues, a pragmatic orientation is necessary in the
law. Most American judges are, needless to say, pragmatists since they have to
anticipate the intended and unintended consequences of their decisions. That is not
necessarily the case with law faculty who can afford to speculate or invoke the
normative dimension more strongly when they analyse a case. Another way of
understanding the difference between the judiciary and the legal academy is by

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invoking the ‘is-ought’ distinction. Judges have to go by what the law ‘is’ whereas
law school faculty are more interested in what the law ‘ought’ to be. Another way of
putting this is to say that judges are preoccupied with the present state of the law
whereas law faculty are more interested in legal reform and in how to pro-actively
shape the law in the years to come.
And, finally, Judge Posner tries to demonstrate the political dimensions of the
Supreme Court. He differentiates between what the Supreme Court used to be and
what it presently is. Judge Posner has written extensively about the federal judiciary
and the division of responsibility between courts at the different levels of the
American legal system. It is therefore important to differentiate between thought
patterns of judges and justices across these different levels since they do not all think
alike. The differences are not only reducible to temperament, but also affected by
their role responsibilities and ideological moorings. It is therefore important for a
practising lawyer to be able to situate the judge before whom he appears in addition
to knowing the law that is relevant to the case. Since most American judges and
courts have a ‘generalist’ orientation, they actively seek the help of the lawyers in
resolving a case. That is quite different from European courts which have a
‘specialist’ orientation. In other words, American judges do not claim to know more
about the law than the lawyers and take the briefs submitted in a case quite
seriously. European courts however which have a career judiciary (comparable to
civil servants) have judges with technical expertise in narrowly defined sections of
the law; these judges are more like technical experts and are less dependent on the
briefs submitted by the lawyers. It is also important to know whether judges decide
mainly through a model of deliberation or through a model of voting. Another
important distinction to keep in mind is that given these basic differences in
orientation, and the high levels of codification in European law, the decisions arrived
at by European constitutional courts are not comparable to those reached by
American federal courts. So while there is no harm in American judges learning
about other jurisdictions and legal systems, it is not easy in practice to invoke
precedents from different parts of the world in resolving cases within American
federal law. Judge Posner thinks that these precedents will at best have a persuasive
function; they will however not be ‘binding’ on American courts since the differences
between Anglo-American common law and European statutory codes are not easily
reconcilable. Those who are thinking through the legal implications of the
arguments for and against Brexit in the UK in recent months, for instance, will
understand the significance of these differences in legal systems and its implications
for law, sovereignty, and governance.
SHIVA KUMAR SRINIVASAN