Tuesday 11th December 2018

Home » Featured Today » Currently Reading:

A Book Review… A Pragmatic Look At The Federal Judiciary

August 14, 2017 Featured Today No Comments

By JUDE DOUGHERTY

Posner, Richard A. The Federal Judiciary: Strengths and Weaknesses. Cambridge, Mass.: Harvard University Press, 2017. xv + 438 pp. Cloth, $35.00.

Richard Posner has been a federal judge for 35 years, and before that a professor of law for 12 years and before that an attorney in private practice for six years. He confesses that “[i]t is only recently that I have become fully aware that the federal judiciary is laboring under a number of handicaps….Our judicial system is excessively backward looking when it should be concerned with consequences.” In this treatise, Posner is concerned only with the federal judiciary.
Posner has long been identified with the legal realist or pragmatic school of thought, one dating to the 1920s and 1930s, represented by jurists such as Benjamin Cardozo, Roscoe Pound, and Felix Cohen. Pragmatic judging is based on a consideration of the likely consequences of alternative outcomes. Its motto could be, “From rule-bound to creative outcome,” or from passive to active.
In its focus on consequences, pragmatism promotes interdisciplinary legal fields of study such as law and psychology, law and economics, and statistical studies. Such studies are vital in the interpretation of relatively fluid constitutional law. Commercial/financial law, contract law, and banking law, by contrast, are stable compared with constitutional law and criminal procedure.
As a law professor, Posner’s initial interest was mainly in the economic effects of court decisions. In the 1950s his interest turned to constitutional law when the Supreme Court, in his judgment, took a leftward turn.
Given his long experience as a federal judge, Posner has come to the conclusion that “too much law is taught in law schools.”
A modern lawyer has to be familiar with first-rate literature in order to write opinion briefs or even memos to superiors that will be literate, eloquent, and fully intelligible and persuasive. Most good writers have been good readers. The modern lawyer also has to be familiar with technology and economics, but that is another matter. Posner would, if he could, make George Orwell’s Politics and the English Language (1946) compulsory reading for all law clerks.
Documents, the older the better, he believes, not current understanding, are the gold coin of conventional legal research and analysis, that is, apart from financial and commercial law. But there is a problem with the veneration of old texts, especially old opinions. Old decisions are often at odds with current values, and those who are ignorant of the historical context in which they were delivered may conclude that those past decisions were arrived at incorrectly. Posner insists that some rulings were right for their times, and could not have been other in the light of their consequences.
Posner admits to being skeptical about courts interpreting statutory law. In some cases there is no intended meaning to be recovered, given that the law may have been badly framed and enacted. Law is basically not about interpretation but about dispute-resolution. Dispute-resolution requires mastery of facts in dispute and common sense.
Another irritant is the fact that federal judges are appointed by politicians who appoint like-minded jurists. Quality is routinely sacrificed to political advantage. All the current justices on the Supreme Court and on many lower courts are of a distinct political cast. One cannot avoid treating the federal judiciary as political branch of government. While race and sexual diversity may play a role in appointments, Posner says he has not noticed any difference between black and white or male and female in decision-making.
At the risk of being thought a philistine, Posner confesses to not being enamored by the eighteenth century, nor by any text that is a product of that century, including the U.S. Constitution and the Bill of Rights. No document drafted back then can guide our behavior today, because eighteenth-century people could not foresee the problems, the culture, the social and economic conditions, the resources and opportunities and problems and dangers of the twenty-first century.
Posner finds especially troublesome the Seventh Amendment. The Seventh Amendment states that if the matter in controversy in a common-law federal case concerns at least $20 the parties have a right to a jury trial. Clearly $20 meant something different in the eighteenth-century.
Another anachronism is the provision in section 1 of the Fourteenth Amendment, which recognizes birthright citizenship. Anyone born in the U.S. is automatically an American citizen. If the provision is read literally, it grants citizenship to even the child of a foreigner who visits the U.S. only to have the child born here, so that he or she will have refuge should things go badly in the family’s home country.
Article 2, section 1 of the Constitution requires that the president be a natural-born citizen. Drawing from his family’s experience, Posner tells the reader that his father emigrated from Romania at age three. He grew up as a normal American, spoke fluent English, graduated from Hunter College, and taught English for many years in New York City public schools. He never became a politician, but if he had, he would have been ineligible for the presidency. Posner concludes that the judiciary should simply ignore patently obsolete provisions of the Constitution.
As a matter of fact, he goes so far as to say that constitutional theory is useless. “If I am right, the Constitution is putty in the hands of the judiciary. The judges especially the Supreme Court justices have to a considerable extent rewritten it.”
A considerable portion of the volume is devoted to Posner’s defense of his own work in the face of criticism. He is especially critical of those who defend what he calls “original intent.” Justice Antonin Scalia and Justice Elena Kagan are singled out for severe criticism. He was appalled by Justice Kagan’s “inflated encomia” upon the death of Justice Scalia, and he has expressed regret that the George Mason School of Law changed its name to honor Scalia.

Share Button

2017 The Wanderer Printing Co.

Twitter Feed

#Apple CEO Tim Cook took the mask off & said
They use Liberal Values to decide what content to censor

They once fought Big Brother
Now they & the rest of Big Tech
Are the #ThoughtPolice

Load More...

Pro-LGBT priest promotes ‘rainbow’ rosary with prayers for ‘full acceptance’ of gay couples

December 6, 2018 (LifeSiteNews) – Pro-LGBT Jesuit priest Fr. James Martin is promoting on social media a rosary with “rainbow” beads for one of the decades which are to be used, the rosary’s creators say, to pray for the “full…Continue Reading

Archbishop Viganò denies claims he defrauded his brother

ROME, December 3, 2018 (LifeSiteNews) — Archbishop Carlo Maria Viganò today has denied claims he defrauded his brother, and has sought to clarify an October court ruling ordering him to pay his brother €1.8 million in inheritance. Many believe the ruling is being…Continue Reading

Vatican’s former doctrine chief: ‘LGBT’ has ‘no place’ in Church documents

VATICAN CITY, November 21, 2018 (LifeSiteNews) – An influential cardinal says that pro-homosexual terminology such as “LGBT” has no place in the documents of the Roman Catholic Church. In a recent interview with LifeSiteNews, Cardinal Gerhard Ludwig Müller, formerly the Prefect of the…Continue Reading

$25 MILLION PAPAL FOUNDATION GRANT TO VATICAN REMAINS UNACCOUNTED FOR

PHILADELPHIA (ChurchMilitant.com) – After Cdl. Donald Wuerl spearheaded a $25 million grant to the Vatican earlier this year through the Papal Foundation, sources confirm the money remains unaccounted for, the Rome hospital designated as beneficiary apparently never having received the grant. Sources also confirm Wuerl…Continue Reading

Cardinal guilty of covering up sex abuse addresses US bishops’ conference

BALTIMORE, November 14, 2018 (LifeSiteNews) – A cardinal barred from public ministry since 2013 as a result of his systematic cover-up of sex abuse spoke at the U.S. Bishops’ General Assembly in Baltimore Tuesday, telling the bishops they “need to lead by witness.” In…Continue Reading

US bishops consider asking Pope Francis to release McCarrick documents

BALTIMORE, Maryland, November 13, 2018 (LifeSiteNews) – The United States Conference of Catholic Bishops (USCCB) will consider officially asking Pope Francis to release any documents related to alleged serial sexual abuser Archbishop Theodore McCarrick. The motion was made from the…Continue Reading

U.S. Catholic Bishops Meet in the Shadow, Still, of Clergy Sex Abuse

This weekend, the Catholic bishops of the United States gather in Baltimore ahead of their three-day annual general assembly, which opens Monday. By coincidence, it will be 16 years exactly since their session in 2002, when they met to amend…Continue Reading

The Synodal Church

Antonio Spadaro, SJ – Carlos Galli Forty years ago, Jesuit Father Arij Roest Crollius wrote: “What is so new about inculturation?”[1] His reflection was a milestone in the understanding of that word and in welcoming a concept at the heart of…Continue Reading

National network of Catholic church leaders told to preserve all communications

The U.S. Attorney for the Eastern District of Pennsylvania has asked the United States Conference of Catholic Bishops to preserve all electronic and paper documents in case other federal prosecutors need to look into accusations of sexual assault against current…Continue Reading

Cdl. Burke ‘strongly’ endorses new virtue education program for young people

October 26, 2018 (LifeSiteNews) – Cardinal Raymond Burke, one of the Church’s most outspoken defenders of life, marriage, and family, has “strongly” endorsed a new virtue education program for children. “Alive to the World” is a continuous, story-based virtues/values program. Much…Continue Reading

Pittsburgh wants to revoke Chick-fil-A’s sponsorship of kids event over Christian marriage views

PITTSBURGH, October 24, 2018 (LifeSiteNews) – America’s most successful Christian food chain may be driven out of a children’s community event in Pittsburgh over the owners’ Christian-based view of marriage and homosexuality, if the Pittsburgh City Council has its way.…Continue Reading

Australian bishop touts women’s ordination: ‘transformation of priesthood’ is underway

CHRISTCHURCH, New Zealand, October 23, 2018 (LifeSiteNews) – An Australian bishop recently told priests that admitting women to the priesthood in the Church’s current state of affairs would be like pouring new wine into old wine skins, but that a “transformation…Continue Reading

Untitled 5 Untitled 2

Attention Readers:

  Welcome to our website. Readers who are familiar with The Wanderer know we have been providing Catholic news and orthodox commentary for 150 years in our weekly print edition.


  Our daily version offers only some of what we publish weekly in print. To take advantage of everything The Wanderer publishes, we encourage you to su
bscribe to our flagship weekly print edition, which is mailed every Friday or, if you want to view it in its entirety online, you can subscribe to the E-edition, which is a replica of the print edition.
 
  Our daily edition includes: a selection of material from recent issues of our print edition, news stories updated daily from renowned news sources, access to archives from The Wanderer from the past 10 years, available at a minimum charge (this will be expanded as time goes on). Also: regularly updated features where we go back in time and highlight various columns and news items covered in The Wanderer over the past 150 years. And: a comments section in which your remarks are encouraged, both good and bad, including suggestions.
 
  We encourage you to become a daily visitor to our site. If you appreciate our site, tell your friends. As Catholics we must band together to rediscover our faith and share it with the world if we are to effectively counter a society whose moral culture seems to have no boundaries and a government whose rapidly extending reach threatens to extinguish the rights of people of faith to practice their religion (witness the HHS mandate). Now more than ever, vehicles like The Wanderer are needed for clarification and guidance on the issues of the day.

Catholic, conservative, orthodox, and loyal to the Magisterium have been this journal’s hallmarks for five generations. God willing, our message will continue well into this century and beyond.

Joseph Matt
President, The Wanderer Printing Co.

Untitled 1

Interview With Cardinal Burke . . . Discriminating Mercy: Defending Christ And His Church With True Love

Cburke3

  By DON FIER (Editor’s Note: His Eminence Raymond Leo Cardinal Burke, Patron of the Sovereign Military Order of Malta and Founder of the Shrine of Our Lady of Guadalupe in La Crosse, Wis., graciously took time out of his busy schedule to grant The Wanderer a wide-ranging interview during a recent visit to the Shrine. Included among the topics…Continue Reading

Developing Lives Of Peace After The Heart Of Mary

By RAYMOND LEO CARDINAL BURKE (Editor’s Note: His Eminence Raymond Leo Cardinal Burke delivered the address below at the 32nd Annual Church Teaches Forum, “The Message of Fatima: Peace for the World,” Galt House, Louisville, Ky., July 22, 2017. The address is reprinted here with the kind permission of Cardinal Burke. All rights reserved. This is part one of the…Continue Reading

Catechism

Today . . .

Cdl. Burke: ‘Synodality’ suggests some kind of ‘new church’ where pope’s authority is destroyed

LIMERICK, Ireland, (LifeSiteNews) – Cardinal Raymond Burke has come out criticizing the concept of “synodality” that was barely discussed during the recently concluded “Youth Synod,” but, nevertheless, found its way into the final document, surprising many of the Synod Fathers. “It’s become like a slogan, meant to suggest some kind of new church which is democratic and in which the authority of the Roman Pontiff is relativized and diminished—if not destroyed,” said Card

Facebook unblocks image of Santa kneeling before Baby Jesus after LifeSite report goes viral

December 6, 2018 (LifeSiteNews) – Facebook is no longer censoring an image of Santa Claus kneeling before the Baby Jesus that it had deemed “violent or graphic content” after a report on LifeSiteNews about the matter went viral yesterday. Facebook had obscured the picture, explaining that the “photo was automatically covered so you can decide if you want to se

Pro-LGBT Catholic prof: Many German bishops don’t believe homosexual acts are wrong

December 5, 2018 (LifeSiteNews) – A Catholic German ethics professor calls Cardinal Müller’s recent remarks on homosexuality “unbearable” and claims that, just as the Church’s teaching on the death penalty has changed, the teaching on homosexuality is also open to change. Cardinal Gerhard Müller, the former Prefect of the Congregation for the Doctrine of the Faith (CDF), has been under constant sharp criticism since his 21 November interview with LifeSiteNews, in whi

Cardinal accuses EWTN’s Raymond Arroyo of attacking Pope Francis

VATICAN CITY, December 3, 2018 (LifeSiteNews) – South African Cardinal Wilfrid Napier has come out swinging against EWTN’s Raymond Arroyo, accusing him of reporting “negatively” on as well as “attack[ing]” Pope Francis. The former Archbishop of Durban tweeted last night that Arroyo was like a “throwback” to Northern Ireland’s most notorious anti-Catholic “Ian Paisley & his ilk.” “The World Over” hosted by Raymond A

Taxpayer dollars help California Planned Parenthood surpass record high income level

November 30, 2018 (American Life League) – For the first time in the history of Planned Parenthood Federation of America, one of its 56 affiliates documented that its annual income surpassed $100 million. The affiliate is Planned Parenthood Mar Monte, headquartered in San Jose, California. In its latest official document (Federal Form 990) filed with the federal government, PPMM reported that in the fiscal year, July 1, 2016, to June 30, 2017, it had a…Continue Reading

Advertisement(2)

When Can Americans Be Arrested In Retaliation For What They Say?

By TERENCE P. JEFFREY (Editor’s Note: Terence P. Jeffrey is the editor-in-chief of CNSnews.com. Creators Syndicate distributes his column. All rights reserved.) + + + It may be a prudent policy to always be polite to the police, but does that mean Americans must give up the right to be rude? A question similar to…Continue Reading

Who Shall Inherit The Earth?

By DONALD DeMARCO Abortion means that aborted babies will not inherit the Earth. Herein is an unequivocal tragedy. But this notion of not being eligible to inherit the Earth is being extended even to those who oppose abortion. In one rather flagrant example, New York Gov. Andrew Cuomo, in an interview with Jessica Chasmar, stated…Continue Reading

Will Paris Riots Scuttle Climate Accord?

By PATRICK J. BUCHANAN In Katowice, Poland, all the signers of the 2015 Paris climate accord have gathered to assess how the world’s nations are meeting their goals to cut carbon emissions. Certainly, the communications strategy in the run-up was impressive. In October came that apocalyptic UN report warning that the world is warming faster…Continue Reading

Amid Veto Threat… Ohio “Heartbeat Abortion” Bill Nears Senate Vote

COLUMBUS (CNA/EWTN News) — The Ohio Senate was expected to pass legislation banning abortion on an unborn baby after he or she has a heartbeat, and there could be enough votes to override Gov. John Kasich’s promised veto, amid questions over whether the proposal could withstand U.S. Supreme Court scrutiny. Republicans control the Senate with…Continue Reading

Eleventh Circuit Court Of Appeals . . . EWTN Wins Lawsuit Over HHS Contraception Mandate

IRONDALE, Ala. (EWTN) — Following a legal battle that has lasted nearly seven years, EWTN Global Catholic Network has prevailed in its lawsuit against the U.S. government over what has become known as the “HHS Contraception Mandate.” In an order by the U.S. Court of Appeals for the Eleventh Circuit published Thursday, November 29, 2018,…Continue Reading

Advertisement

Our Catholic Faith (Section B of print edition)

The Lord Is Near

By FR. ROBERT ALTIER Third Sunday Of Advent (YR C) Readings: Zeph. 3:14-18a Phil. 4:4-7 Luke 3:10-18 In the first reading today the Lord instructs Zion to shout for joy, Israel is to be joyful, and Jerusalem is to be glad and exalt. The reasons for this rejoicing are threefold: Israel’s judgment has been removed, God has turned their enemies…Continue Reading

ADD Represents D.C. Church… Atheists’ Lawsuit Would Force Churches To File Tax Returns

WASHINGTON, D.C. — Alliance Defending Freedom attorneys representing a church in Washington, D.C. — The New Macedonia Baptist Church — have filed a motion in federal court to intervene in an atheist group’s lawsuit. The lawsuit, filed by Freedom From Religion Foundation attorneys on behalf of Nonbelief Relief, Inc., seeks to more greatly entangle the government with religion by unconstitutionally…Continue Reading

The Authority Of Bishops… Can A Catholic Resist A Wrong Teaching Of His Bishop?

By RAYMOND DE SOUZA, KM Part 3 In the two previous articles we have learned from great Catholic theologians that a layman can resist a wrong decision of a bishop and even of the Bishop of Rome — the Pope. But — and this “but” is very important — wouldn’t such a resistance go against the teaching on papal infallibility?…Continue Reading

The Theological Virtues — Faith

By DON FIER As we transitioned last week from a lengthy treatment of the four cardinal virtues (and a brief overview of sanctifying grace) to the theological virtues, emphasis was given to the fittingness of the term “theological” (as derived from the Greek Theos and logos), for these virtues have God Himself as their Author, motive, and direct object. “Infused…Continue Reading

Catholic Replies

Q. For the benefit of those who do not have a computer or library access, could you please give us a list of the Doctors of the Church? I have a book entitled 33 Doctors of the Church, but I think some have been added since that book was published. — B.W., Florida. A. Doctor of the Church is a…Continue Reading

Catholic Heroes . . . Blessed Maria Virgo

By CAROLE BRESLIN When I visited my aunt in St. Louis, Mo., we would visit the basilicas, the museums, and other places of interest. She had many sites near her that were particularly special to her, such as her parish, The Little Flower, in Richmond Heights. In addition, she described a place where she frequently went for eucharistic adoration at…Continue Reading

Catholic Heroes… St. Raphael Kalinowski

By CAROLE BRESLIN There are many terms we use in our language which are clichés. We hear people say that somebody “kicked the bucket,” meaning that he has died, or “I’ll send you to outer Mongolia,” meaning that they will ship you so far away no one will find you. Fr. Kalinowski not only went to a place just north…Continue Reading