10 Richard A. Posner Quotes on Authority, Barnacles and Standards of review - Quotes.pub

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The outstanding examples are still Cardozo’s Nature of the Judicial Process18.

A Supreme Court Justice writing about constitutional theory is like a dog walking on his hind legs; the wonder is not that it is done well but that it is done at all.

A poem by Rudyard Kipling says derisively of people who despise soldiers and police that they make ‘mock o’ uniforms that guard you while you sleep.’ You are likely to have a strong reaction pro or con to this sentiment and how Kipling expressed it, but you will not be able to defend your view with arguments that would convince someone who has the opposite reaction. If you are intellectually sophisticated you mare recognize that your conviction, however strong, cannot be shown to be ‘right,’ but at most reasonable. Yet that recognition will not weaken the strength of your conviction or its influence on your behavior.” 105-06 (quoting Rudyard Kipling, Tommy.)

How Judges Think Quotes Reasonable Quotes Tommy Quotes Unreliable witnesses Quotes

The outstanding examples are still Cardozo’s Nature of the Judicial Process18

Reflections on Judging Quotes

I do not apologize for these terms or, more generally, for discussing judicial thinking in a vocabulary alien to most judges and lawyers. Judicial behavior cannot be understood in the vocabulary that judges themselves use, sometimes mischievously. (11)

How Judges Think Quotes Metalaw Quotes

One understands why law clerks follow the Bluebook. But why a judge would direct his law clerks to do so, or even tolerate their doing so, is a mystery to me. Are judges sheep? Why should they care what kids at the Harvard Law Review consider proper abbreviation?

Bluebook Quotes Citation Quotes Harvard law review Quotes Sheep Quotes

There are really only two standards of appellate review: plenary and deferential. Conventionally there are four basic standards (with many variants), which in ascending order of deference to the trial court or administrative agency are de novo, clearly erroneous, substantial evidence, and abuse of discretion. But the last three are, in practice, the same, because finer distinctions are beyond judges’ cognitive capacity. The multiplication of unusual distinctions is a familiar judicial pathology.

Standards of review Quotes

The Bluebook is an absurdity, but it endures, in fact thrives, impervious to criticism and ridicule. The judiciary navigates the sea of modernity, slowed, thrown of course, by the barnacles of legal formalism (semantic escapes from reality, impoverished sense of context, fear of math and science, insensitivity to language and culture, mangling of history, superfluous footnotes, verbosity, excessive quotation, reader-unfriendly prose, exaggeration, bluster, obsession with citation form) – an accumulation of many centuries, yet constantly augmented. There is little desire to give the hull a good scraping. There is fear that the naked hull would be unslightly, even unseaworthy. The fear is overblown. A week after all the copies of the Bluebook were burned, their absence would not be noticed.

Barnacles Quotes Bluebook Quotes Harvard bluebook Quotes Legal realism Quotes Reflections on Judging Quotes

But the fact that judges follow precedent regularly even though not invariably does not support the legalistic theory as strongly as one might expect. The original precedent in a line of precedents could not have been based on precedent.

Authority Quotes How Judges Think Quotes Precedents Quotes Precedents and their discontents Quotes

Capitalism is not a synonym for free markets.