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Life of a Law Student, University of Houston Law Center

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Richard A. Posner, The New Republic, Modesty and Power

By: Luke Gilman | Other Posts by
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Classic Posner:

And how realistic is Hamburger’s picture of the deferential judge? He acknowledges that his history is one of judicial “ideals” rather than of judicial actualities, but the neglect of actualities weakens his case. He gives too little weight to the fact that judges (most of them, anyway) talk a deferential game even when they are playing a discretionary one.

For the less secure a judge’s authority–and judicial authority was far less secure then than it is in the United States today–the greater his need to represent himself as merely an oracle of the law. He does not decide cases; it is the law, speaking through him, that decides them. Rather than being a “decider,” he is merely a “discerner.” To criticize a judicial decision is to criticize the law itself.

The idea that law, whether in the thirteenth century or the twenty-first century, is a body of principles and rules that cover the entire landscape of potential legal disputes, so that the judge has only to find the principle or rule that governs the disputes that he is called upon to adjudicate, is (and probably always has been) either a ridiculous pretense or a rhetorical flourish.

Richard A. Posner, The New Republic, Modesty and Power

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