Judging a Book: Kopf Reviews Posner's "Federal Judiciary" | Law360® Expert Analysis series

Posted on 08-17-2017 by
Tags: book , Judge Richard A. Posner , Judge Richard Kopf , book review


"Judge Posner is intellectually challenging as perhaps no legal writer has been since Posner’s cranky older brother Oliver Wendell Holmes Jr."—Judge Richard Kopf

 

This article is the first in an Expert Analysis series of book reviews from judges.

 There is a wonderful sketch[1] of Judge Richard Allen Posner[2] drawn by the late Richard Levine. It shows the judge, dressed in a black robe with arms outstretched as if they were the billowing wings of a lean vulture, kicking a human brain down a hallway. The judge is caricatured with a half-smile that looks for all the world like a sneer. That sketch is the perfect metaphor for both Judge Posner and his new book, "The Federal Judiciary: Strengths and Weaknesses."[3]

Because I am a Posner groupie holding the judge in extremely high regard and because I have written a lot about him,[4] I suppose that is why Law360® solicited this review from the likes of me, a 70-plus senior United States district judge (with a big mouth). Whatever the reasons, I am privileged to provide it. Here goes.


While I will later give my own point of view, it is helpful to highlight several reviews. I know you, the reader, hate long block quotes, but this one from Publishers Weekly is worth reading slowly and carefully:

Posner ... a sitting federal judge and former law-school professor, argues that the federal judiciary is excessively backward-looking and handicapped by outdated practices and cultural norms. The first section of the book focuses on the Supreme Court. The balance is devoted to the federal appeals courts, district courts, and civil litigation. The villain of the piece is Antonin Scalia, the U.S. Supreme Court’s leading proponent of originalism up to his death in 2016. Originalism, as Posner defines it, refers to relying on the strict letter of the law—i.e., the U.S. Constitution—with some flexibility allowed for “contextual factors.” Posner dismisses originalism as “nonsense” and rips Scalia’s legal opinions to shreds. In Posner’s view, the premise that Supreme Court justices base their decisions on legal analysis, precedents, and authoritative sources are “rubbish.” Instead, he argues, decisions are based on the justices’ own temperaments, ideologies, and experiences. Posner claims to stop short of saying constitutional law is a “complete fabrication,” but he’s darn close to the line. He is persuasive, though his presentation is at times marred by his strident, overbearing tone. Serious-minded readers who relish an intellectually challenging read and don’t mind being lectured to will appreciate Posner’s reasoning.[5]

Law360 subscribers can read Judge Richard Kopf's full book review.


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