Judge Richard PosnerStrengthening the Rule of Law Requires More, Not Less, Reliance on Formalism
Richard A. Posner is the greatest law professor ever to have become a judge in the United States. And he has proven to be the most influential appellate jurist below the Supreme Court who was ever a law professor. Indeed, by the most telling measure—citations by other courts—he holds more sway over his colleagues than any other jurist on the federal courts of appeals. Thus, it would seem that no one is better equipped to write about the relation between the academy and the judiciary. Sadly, however, in Divergent Paths: The Academy and the Judiciary he has produced a disappointing…
Antonin Scalia–A Giant of Jurisprudence
Justice Antonin ScaliaJustice Scalia is one of the few jurists who vindicate Carlyle’s great man theory of history. Because he brought three large and different talents to the Court, he changed the course of its jurisprudence. He had the intellect to fashion theories of interpretation, the pen to make them widely known, and the ebullience to make it all seem fun.
More than any other individual, Justice Scalia was the person responsible for the turn to both originalism in constitutional law and textualism in statutory interpretation on the Court and in the legal world more generally. Indeed, it was Scalia who made a crucial move in modern originalist theory. While a variety of scholars had argued that the Constitution should be interpreted according to the intent of the Framers, original intent originalism had some disabling flaws, the most important of which it is impossible often to find a unitary intent in a multimember deliberative body. Scalia championed a theory of original meaning that made the Constitution depend not on the intent of the Framers but on the publicly available meaning of its provisions.
Posner’s Tyranny of Expertise
Richard A. Posner has been called his generation’s “Tenth Justice,” a judge like Learned Hand or Henry Friendly whose prolific intellect and erudite jurisprudence rank him in quality and influence among members of the Supreme Court despite never having sat alongside them.[1] Readers of Posner’s new book, Reflections on Judging, may both concur in his ranking as tenth and be grateful that he stayed that way.
The Legal Historian as Entomologist
The law school curriculum is now full of interdisciplinary subjects. Law and economics may dominate but almost other every social science is well represented. These perspectives offer innovative methods to analyze the effects of law and inform the content of legal reforms. But long before the rise of this alphabet soup of interdisciplinarity, law and history were a well-established combination, providing an important part of legal education and an essential element of legal science. The early salience of legal history for the study of law is all the more reason to welcome the splendid volume, Law’s History: American Legal Thought and…
Tom Smith on Legal Realism and Formalism
Tom has a characteristically funny and insightful post on legal realism and formalism. Here is an excerpt: Of course every legal system, if it is a legal system, is to a degree mechanical and if it's not just a mathematical exercise, to a degree not. A twenty year old pickup, that wiggles and squeaks a great deal, is still a mechanical system. That it does a great deal it can do in part because a lot of it is not rigid, hardly makes it less mechanical. Part of how it works may not be explicable in terms of standard mechanics. You…
