The Case for Legal Realism

Wednesday, October 23, 2013


Richard Posner, circuit judge on the United States Court of Appeals for the Seventh Circuit, senior lecturer at the University of Chicago Law School, and the author of Reflections on Judging (Harvard University Press, 2013), draws on his 31 years on the bench to explain why legal "realism" is better than legal "formalism," like that espoused by Justice Scalia.



Richard Posner

Comments [17]

Mr. Bad from NYC

@ Richard from levittown

Wut? Are you "tricky Dick Posner" hisself? Are you selling me a car? Is this a fine vehicle with it's own unique intricacies and enjoyable eccentricities or a frigging Ford Pinto with an IED for a gas tank my good man, my friend, my le persuasive car salesman?

Judges have the power of god within their court rooms. If a case is not being properly handled by either side they are enjoined by OATH to address it, they are NOT at liberty to ignore it, the continuing malfeasance is simply a matter of complete and utter dereliction of duty and heinous personal self regard. It is a perfect Posner judiciary with it's ear cocked to the needs of the elites and the manifest destiny of the status quo. Get edumacated my fellow 'murrican:

Oct. 24 2013 12:03 AM
Richard from levittown

Judges make decisions. They are, we assume, human. They will make errors and hopefully some wise decisions.
Law is a discipline with its own special sources, established knowledge, and its own structure. When a judge reflects on his own decisions he is trying to collect his own emotional and intellectual bases for what he/she considers rational and reasonable. Fortunately (or unfortunately) modern brain science has little place in their self-analysis. Modern decision making models are not part of their analysis. Like the "social sciences" it is inevitable that "values" will be a part of how they decide cases. Perhaps, as we gain more data and evidence on the decision making process in humans, judges will benefit (or not). And I believe what
Judge Posner is doing is to recognize and admit that his Indiana decision was done without complete and correct information. That is not such a bad thing.
Unfortunately, the data/technology revolution has not hit the justices of many of court systems (maybe a few), they make decisions on data that is outdated, found to be incorrect, or just plain false.

Oct. 23 2013 04:38 PM
Taher from Croton on Hudson

Listing to judge Posner confirms how America’s judicial system is nothing but a JOKE. There is no real justice in America only bad theater and the public delusions that our country has real justice. Manipulated and bought by the wealthiest in our society via corrupt laws and politicians who make those laws. The Judicial system becomes an enforcement mechanism for the most powerful in our society.

Oct. 23 2013 01:37 PM
Mr. Bad from NYC

This is what you do not understand Brian. A "militia levy system" is an outdated concept. But the function which a militia served in a free society is not. An individual keeping and bearing arms for the purpose of defending himself and if necessary his family and neighbors from internal and external enemies is not outdated and never will be. Just because gun owners don't drill in the town square doesn't mean they're not performing a militia like function. A militia is not LE. It does not enforce laws. It defends the life, liberty and property of the civilians which comprise it, something which LE is often unable or unwilling to do. Take a look at what happened after Katrina.... Where was LE? As we found out the ones that hadn't fled for their lives were killing innocent people on Danziger Bridge. You can call them if you want, I'm sure they'll defend you next time there is a national/regional crisis....

Oct. 23 2013 11:24 AM
Truth & Beauty from Brooklyn

The truth is that there are pros and cons for every issue, and at least two sides to every story, so all of these cases need to be decided on a case by case basis. For everyone who has commented here with cynicism or abuse, you don't know all the issues of a case until you are sitting on the bench hearing all the arguments - and your comments prove that none of you has.

Provided a judge is an honest broker and not unduly influenced by anything EXCEPT the facts, logic and pragmatism, the decisions s/he renders should be fair and impartial.

Oct. 23 2013 11:21 AM
Schmulik from Queens

Count Scalia is a medieval mind he belongs in that era inquisition, serfdom and all ... what grave did this idiot crawl out from?

Oct. 23 2013 11:20 AM
RJ from prospect pl

I'm stunned that an educated and public intellectual such as Judge Posner could be so insulated from both the history of *recent* voter suppression as well as the history of it, that he could vote a specific way without educating himself on the issue.

And for WNYC to give him such a short amount of time--unwilling to take some away from pledge pushing??--is an insult.

Oct. 23 2013 11:19 AM
GC from Manhattan

A WELL REGULATED MILITIA, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Oct. 23 2013 11:16 AM
Joe Mirsky from Pompton Lakes, NJ

“A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.“
— Draft version of the Second Amendment sent by the House of Representatives to the United States Senate, on August 24, 1789.

The Second Amendment "has been the subject of one of the greatest pieces of fraud—I repeat the word 'fraud'—on the American public by special interest groups that I have ever seen in my lifetime.”
— Warren E. Burger, conservative Chief Justice of the Supreme Court 1969-1986, MacNeil/Lehrer NewsHour, December 16, 1991.

Oct. 23 2013 11:15 AM
GC from Manhattan

I have been saying this all along ...the gun nuts IGNORE the preamble to the second amendment ( and expanded in other clauses) because it undermines their free gun ownership fantasy... ask all gun nuts that cite the constitution : "What militia do you belong to" If you do not belong to a militia where congress has the authority to discipline etc you are an OUTLAW....

(Clause 15 – The Militia)

[The Congress shall have Power] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

(Clause 16 – The Militia)

[The Congress shall have Power] To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

Oct. 23 2013 11:15 AM
Amy from Manhattan

Then there's the question of whether literally medieval laws are an appropriate basis for contemporary legal decisions.

Oct. 23 2013 11:14 AM
BK from Hoboken

Can the guest discuss Scalias recent comments that he doesn't read the Washigton Post or NY Times because they are too liberal? I would think that any judge should be open to different opinions, interpretations, and viewpoints. If a SCOTUS judge is so close minded that he won't read his high quality local paper, to me he/she is unfit for that position.

Oct. 23 2013 11:13 AM
steve from upper west side

Legal Realism??? PUH-LEEEESE... Saying that Scalia is fair and unbiased and not the absolute definition of an activist judge pursuing a political agenda, is like saying that the recent Tea Party tactics in the House represent responsible and reasonable governance, with no political agenda...

Oct. 23 2013 11:12 AM
Mr. Bad from NYC

HAHAHAHAHAHA he sounds like Dworkin when he describes "Realism" on the liberal circuit... Posner. I'm laughing at the superior intellect.

Oct. 23 2013 11:06 AM

I'm holding out for a better matching deal offer. But yo where's the Chico bags.

Oct. 23 2013 10:56 AM
Mr. Bad from NYC


[...]keep in mind that not only is he the fun judge (he wants to LEGALIZE IT!, just like Ron Paul!) he's also the judge who has written in defense of Korematsu v. United States and who believes we may have just a little bit too much free speech:

both of which are sorta relevant in the post 9/11 world donchathink?

[This comment has been altered by a moderator. Please keep in mind WNYC's policy to stay on topic, be civil, and be brief.]

Oct. 23 2013 10:19 AM
Mr. Bad from NYC

Well, waddya know, damned if it isn't America's Foremost Jurist, Legal Thinker and All Around Great Guy Dick Posner? Howdy Judge!

The rise of Koch Brothers corporate sponsored libertarianism has it's legal counterpart in the pragmatism of Dick Posner. Don't be fooled by the slap against Scalia who, however much you may hate his politics, has far more integrity than this moral relativist/corporate apologist masquerading as an "aw shucks" realist for whom fancy philosophers and "ideals" are just a waste of space. Scalia's formalism is predicated on his belief that we are ruled by laws, not men. Posner thinks that there is nothing else but the will of powerful men and the law should serve their ends.

This is the guy who not only doesn't believe that abstractions like "fairness" should guide legal decision making he doesn't even believe they're worth talking about. Couple that with his political view that Americans are too stupid/apathetic to rule themselves and you have a regressive, descriptive jurisprudence that embraces corruption, condescension, government sanctioned oppression.

Oct. 23 2013 09:29 AM

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