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The Federal Judiciary: Strengths and Weaknesses

The Federal Judiciary: Strengths and Weaknesses

by Richard A. Posner,
The Huffington Post, August 15, 2017

A judge on the U.S. Circuit Court of Appeals, senior lecturer at the University of Chicago Law School, and the author, among many other books, of The Economic Analysis of Law (now in its 9th edition), Richard Posner is our nation’s foremost (and most ferocious) proponent of “legal realism.” Taking aim at “originalism,” the theory associated with Supreme Court Justice Antonin Scalia, Posner claims that instead of “hiding behind the law,” judges should be pragmatists, issuing rulings based on common sense, the fundamental norms of their society, and the likely consequences – as long as those rulings are not inconsistent with statutes or constitutional texts. Convinced that the phrase “result oriented” should be retired as a term of opprobrium for judges, Posner does not shrink for the implication that “the judicial role is to a great extent legislative.” Or from reminding originalists that it is difficult “to see where you are going if your head is screwed on backward.”

 

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