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POSNER, Richard A. The Federal Judiciary: Strengths and Weaknesses. Cambridge, Mass.: Harvard University Press, 2017. xv + 438 pp. Cloth, $35.00-Richard Posner has been a federal judge for thirty-five years, and before that professor of law for twelve years, and before that six years an attorney in private practice. He confesses that "[i]t is only recently that I have become fully aware that the federal judiciary is laboring under a number of handicaps. . . . Our judicial system is excessively backward looking when it should be concerned with consequences." In this treatise, Posner is concerned only with the federal judiciary.
Posner has long been identified with the Legal Realist or pragmatic school of thought, one dating to the 1920s and 1930s, represented by jurists such as Beqjamin Cardoza, Roscoe Pound, and Felix Cohen. Pragmatic judging is based on a consideration of the likely consequences of alternative outcomes. Its motto could be, "From rule-bound to creative outcome," or from passive to active.
In its focus on consequences, pragmatism promotes interdisciplinary legal fields of study such as law and psychology, law and economics, and statistical studies. Such studies are vital in the interpretation of relatively fluid constitutional law. Commercial/financial law, contract law, and banking law, by contrast, are stable compared with constitutional law and criminal procedure.
As a law professor, Posner's initial interest was mainly in the economic effects of court decisions. In the 1950s his interest turned to constitutional law when the Supreme Court, in his judgment,...