Unfettered Judge Posner

In ancient times, in the Middle Ages, and in the early Renaissance, people wrote books known as “mirrors of princes.” They would describe the life and character that a princely ruler ought to have, providing a catalog of princely virtues, and setting out tips and recipes for a princely education and the organization of a prince’s household. All of this an actual ruler could consider as an ideal, comparing it point by point with the way he ran his kingdom or principality. The best-known example of a mirror of princes is Machiavelli’s Il Principe, published in 1532, though it is arguable that Machiavelli actually intended to subvert the genre, upending as he did the list of traditional princely virtues, replacing benevolence with cruelty and fidelity with deception, and maintaining that “how one lives is so far distant from how one ought to live, that he who neglects what is done for what ought to be done, sooner effects his ruin than his preservation.”

Richard Posner’s new book is a “mirror of judges”—a discussion of judicial virtues and principles for judicial education and the organization of a judge’s chambers. Of course, mirrors of princes were seldom written by princes themselves; they were written as advice to princes by clerics or scholars or political philosophers. Posner’s mirror of judges is written by an eminent judge of the Seventh Circuit—it’s as though Il Principe had been written by Lorenzo the Magnificent. Either way, Reflections on Judging is quite Machiavellian. For Posner too wants to upend our sense of the traditional judicial virtues; he wants to replace a naive ethics of adjudication with a set of prescriptions that are less formalistic, more pragmatic than conventional wisdom, and certainly more robustly realist in their character.

Some of what Posner writes is presented as advice to a new judge, and much of it is unexceptionable. Judges should avoid unnecessary dissents and feuds with their brethren on the bench. They should try to get out of their chambers more and not pride themselves on an affected ignorance of the world around them. Appellate judges should occasionally volunteer to conduct trials, including jury trials, in lower courts because nowadays not all of them begin their appellate careers with district court experience. Judges should write their opinions themselves and address them to intelligent members of the public, not have them ghost-written by their clerks (who are fresh out of law school). Judge Posner has his clerks do research as all judges do; but unlike most judges and justices he insists on writing first drafts of his opinions himself and writes them in plain style rather than in the finicky citation-laden manner of a law review article.

Posner is particularly hostile to something called The Bluebook—a manual for legal citation that currently runs to more than five hundred pedantic pages, breeding “a culture of formalism, nitpicking, and manual gazing” and lending a spurious air of complexity and technical competence to cover …

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