Τετάρτη, 13 Ιουλίου 2016

"Realism, the Path Forward"

"One reason the legal realism of the 1920s and 1930s was widely disparaged was that it seemed to involve the substitution of personal beliefs and emotions - at best of common sense (which often is untrustworthy) - for the legal "science" represented by formalism, with its claims to objectivity and impersonality. Those claims were and are wildly overstated - intuition, personal beliefs, and like sources of subjectivity play a large role in judicial decisions, even when a decision comes wrapped in a rhetorical cloac of objectivity. But that is no reason to be complacent about realism. Realism, to be realistic in this day and age, has to be grounded, to a considerably greater extent than at present, in scientific theory and empirical understanding."

"Law attracts some very bright people. But it is not profound. It is one of the simplest professional fields. You see this in the delegation of opinion writing to lw clerks, externs, and interns. I disapprove of such delegation at the appellate level (at the trial level it is unavoidable because of caseload), yet the opinions these neophytes turn out are on the whole quite polished professional products. Many a second-year law student, serving as a judge's intern or extern, has written a very good published opinion for a federal or state appellate judge. It's as if second-year medical students performed brain surgeries or heart transplants. It's because legal analysis doesn't really cut very deep that young judges are rare. The young are analytically sharper than the old but lack experience. In ana analytically weak field, experience may be essential to successful problem solving."

"The opinions of the great judges are rarely works of subtle analysis. An opinion by Holmes or a Hand or a Jackson doesn't read like a law review article. A great judge is not a great professor manqué even if he is a former professor. Holmes's book The Common Law is an academic work of great distinction but his judicial opinions are not academic - yet they are wonderful."

Richard A. Posner, "Reflections on Judging", Harvard University Press, 2013, p. 353-355.

Richard A. Posner, ένας ευφυέστατος νομικός που άλλοι ομνύουν στο όνομά του και άλλοι εκνευρίζονται από την υπερβολική του αυτοπεποίθηση.

Άλλοτε ανήκω στους πρώτους, άλλοτε στους δεύτερους... ομολογώ...

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