The Judge & Company – Questions for Judge Posner from Judges, Law Professors & a Journalist

 

Here is another in the truly remarkable series of articles written by Professor Ronald K. L. Collins for Concurring Opinions on Judge Posner.  Again, I am fascinated and urge readers to carefully review the piece.

This time law professors, judges and a journalist question Judge Posner on all manner of subjects, and he answers those questions.  The questions are broad ranging and Posner’s answers are sometimes provocative, other times candid, and all worth thinking about.

Here are three examples.  I would be especially interested in knowing what readers of this blog think about these questions and answers or any of the others questions and answers.

V. Law & Economics

Professor Michael Dorf: I detect in your academic work (and to a lesser extent your work as a judge) a gradual drift from an economic analysis of law to pragmatism more broadly. Do you agree with that assessment, and if so, what do you think accounts for it?

[RC: Professor Dorf wrote the biographical entry on Judge Posner for the Yale Biographical Dictionary of American Law (2009).]

Judge Posner: You’re correct. It is partly a result of the inroads that psychology has made on economic analysis, partly a result of the economic profession’s failure to understand finance and monetary policy in the period leading up to the crash of 2008, and (relatedly) the revelations of unexpected extensive greed and corruption in American business, not limited to the financial industry.

[RGK note: Posner’s comment about psychology are, I think, very important.]

Next, consider this exchange about the “record”:

VI. The Record of a Case

Professor Frederick Schauer: You tend to go beyond the record, the briefs, and oral argument more often than most appellate judges, and you have noted that you have been criticized for it. Could you explain your practice, explain the criticism, and explain why you think the criticism misses the mark?

Judge Posner: I find that the briefs and arguments, and lower-court opinions, very often do not answer the questions that I think are important to a sound understanding of the case. So, I look for the answers, often by an Internet search. I tell lawyers if you don’t like me doing that, do it yourselves. I do try to be sensitive to risk of error in judicial fact research. I understand the criticism, because the lawyers want to control the case. They invoke the glories of the adversary system. I think the adversary system is overrated. Not that I want to convert to the inquisitorial system that prevails in Europe (except the U.K.) and most of the rest of the world, but I want to see the adversary system taken down a peg. I am a big fan of Fed. R. Evid. §706, which allows a judge to appoint his own expert witness, as opposed to having to depend entirely on party experts.

Finally, for you criminal law folks,

XX. The Fourth Amendment Exclusionary Rule

Professor Yale Kamisar: Many years ago, before becoming a federal judge, you wrote an article forcefully criticizing the Fourth Amendment exclusionary rule. Do you still feel the same way about the search and seizure exclusionary rule today?

Judge Posner: Yes, especially with the emergence of really effective federal tort remedies for unreasonable searches or seizures. That is far superior to excluding what is often highly probative evidence.

[RC: For a listing of some of Judge Posner’s judicial opinions re the exclusionary rule, go here (and search “exclusionary rule”)]

I look forward to your thoughts.

RGK

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