A conversation with judge Richard A. Posner

Duke Law Journal

Volumn 58, Issue 7, 2009, Pages 1807-1823

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EID: 68049107204     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (25)

1. Richard A. Posner, Countering Terrorism: Blurred Focus, Halting Steps (2007).
2. Richard A. Posner, Sex and Reason (1992).
3. Richard A. Posner, Antitrust Law (2d ed. 2001).
4. Richard A. Posner, Remaking Domestic Intelligence (2005).
5. Richard A. Posner, Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts (2001).
6. Richard A. Posner, The Problematics of Moral and Legal Theory (1999).
7. Richard A. Posner, How Judges Think (2008).
8. Eldred v. Ashcroft, 537 U.S. 186 (2003).
9. In his confirmation hearings before the Senate Judiciary Committee, Chief Justice Roberts explained his belief in judicial restraint by analogizing the role of a judge to that of an umpire in a baseball game-the umpire's job is to call balls and strikes, whereas the pitcher and batter play the game. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States Before the S. Comm. on the Judiciary, 109th Cong. 56 (statement of John G. Roberts, Jr.).
10. District of Columbia v. Heller, 128 S. Ct. 2783 (2008).
11. Judge Posner explains that legalism is a theory of judicial decisionmaking in which the judge lacks discretion, as doctors treat an illness: The treatment decisions of physicians are determined . . . by the physicians' understanding of the structure of the physical world, and the aspiration of the legalist is that a judicial decision be determined by a body of rules constituting "the law" rather than by factors that are personal to judges, in the sense of varying among them, such as ideology, personality, and personal background. The ideal legalist decision is the product of a syllogism in which a rule of law supplies the major premise, the facts of the case supply the minor one, and the decision is the conclusion.
12. Troupe v. May Dep't Stores Co., 20 F.3d 734, 736-37 (7th Cir. 1994) (allowing a case to survive summary judgment because the plaintiff presented a "combination of ambiguous statements, suspicious timing, discrimination against other employees, and other pieces of evidence none conclusive in itself but together composing a convincing mosaic of discrimination against the plaintiff").
13. See Sylvester v. SOS Children's Vills. Ill., Inc., 453 F.3d 900, 904 (7th Cir. 2006) ("[I]t was not the intention in Troupe to promulgate a new standard, whereby circumstantial evidence in a discrimination or retaliation case must, if it is to preclude summary judgment for the defendant, have a mosaic-like character.").
14. The questioner is David F. Levi, Dean of the Duke University School of Law and former Chief Judge of the United States District Court for the Eastern District of California.
15. Crawford v. Marion County Election Bd., 472 F.3d 949 (7th Cir. 2007), aff'd, 128 S. Ct. 1610 (2008).
16. See Crawford, 128 S. Ct. 1610 (Stevens, J., joined by Roberts, C.J. & Kennedy, J., announcing the judgment of the Court); id. at 1624 (Scalia, J., joined by Thomas & Alito, JJ., concurring in the judgment)
17. E.g., Simeon Djankov et al., Courts, 118 Q.J. Econ. 453 (2003);
18. Daniel Klerman & Paul J. Mahoney, The Value of Judicial Independence: Evidence from 18th Century England, 7 AM. L. & Econ. Rev. 1 (2005);
19. Paul J. Mahoney, The Common Law and Economic Growth: Hayek Might Be Right, 30 J. LEGAL STUD. 503 (2001).
20. E.g., Jeffrey A. Segal & Harold J. Spaeth, Majority Rule and Minority WILL passim (1999) (contending that Justices privilege their preexisting views of the law over precedent when deciding cases);
21. Jeffrey A. Segal & Harold J. Spaeth, the Supreme Court and the Attitudinal Model passim (1993) (arguing that Justices implement policy preferences in their decisions).
22. Richard A. Posner, Cardozo: A Study in Reputation (1993).
23. Andrew L. Kaufman, Cardozo (1998).
24. Bruce Allen Murphy, Wild Bill: The Legend and Life of William O. Douglas (2003).
25. Richard A. Posner, Judicial Biography, 70 N.Y.U. L. REV. 502 (1995).