Judge Posner's Challenge to the Philosophy of Law
ABSTRACT: This paper presents a conceptual analysis of Richard Posner's empirical theory of judicial behavior. His theory opposes the conventional view which holds that judges are insulated from external pressures so their judicial decisions will be based upon a disinterested understanding of the law. Since economics holds that all people — including judges — attempt to maximize their utilities, Posner thinks that the conventional view is an embarrassment which presumes judges are not rational. His theory holds that the judicial insulation has actually left judges maximizing their utilities by trading judicial utility against leisure utility. Posner's theory presents a challenge to the hope for a disinterested judiciary. It threatens as well to eliminate the philosophy of law by reducing it to what he calls antecedent conditions.
The Judge's oath requires him to judge according to the law, not according to his pleasure. — Plato, Apology
The hard fact is that sometimes we must make decisions we do not like. We make them because they are right, right in the sense that the law and the Constitution, as we see them, compel the result — Justice Kennedy concurring, Texas v Gregory Lee Johnson
In the context of his experience on the bench and his interest in the general theoretical approach of "Law and Economics," Richard Posner has developed an important empirical theory about judicial behavior which has significant national and international implications. In the economic analysis of law, economics, understood roughly as capitalism, is taken as fundamental to the understanding and application of law. Posner's theory is presented as a further development of the general progra...
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...hey disinterestedly understand it. Justice Kennedy's qualification of "as we see them" forsakes a notion of platonic objectivity.
(5) Ibid, p. 10.
(6) Qua academic, I would note the parallel to university professors and teaching, though the university achieves the outcome with distribution of reward and punishment devices not applicable to the Article III judges.
(7) Along with the use of stare decisis, Posner cites others such as "... the multitude of devices, most judge-invented, for ducking issues ... : the issue is moot or unripe, or calls for an advisory opinion, or presents a nonjusticable political question, or the party pressing it lacks standing, or the appeal was filed a day late, or the appellant had failed to exhaust some administrative or judicial remedy. These devices enable judges to reduce their workload, ..." Ibid, p. 21.
(8) Ibid, pp 2-3.
Hall, Kermit L, eds. The Oxford guide to United States Supreme Court decisions New York: Oxford University Press, 1999.
The relationship between the Judiciary and the poor is one stained by false promises and stagnate action. In his empirical study of the legal system and it's distribution of benefits, both in quantitative economic terms and in intangible gains, to players with varied legal resources titled “Why the 'Haves' Come out Ahead”, Marc Galanter presents a realistic model of the judicial system and it's preferential treatment to those with more legal capital. A descriptive model of the current judiciary is presented followed by an normative ideal model of what we ought to do to even the legal playing field,
Books I and II of the Republic deliver a scathing indictment against a formalist theory of adjudication. Formalist legal justice assumes that it is “possible to deduce correct judgments from the laws by an automatic process” (92) without reference to the purpose or end of the law.
Columbia Law Review, 104, 1-20. doi:10.2307/4099343. Reynolds, S. (2009). The 'Standard'. An interview with Justice Ruth Bader Ginsburg.
Anyone who wants to learn more about the aspects of street art should definitely watch the documentary “Exit through the Gift Shop.” I’m not much on any film that has to deal with art, but this one caught my attention. If you are like me and don’t care much for any film that has to deal with art, think again! I had never heard of Banksy until I watched this documentary, and let’s just say I was astonished by his street artwork. This film explores modern art and shows people’s perceptions to art. However, this movie is not a movie intended for any children to watch due to the amount of foul language.
Banksy is known as king of graffiti, british artist, painter and as well as a filmmaker with a unknown identity (“The Story Behind Banksy”). However, the names Robin Gunningham and Robert Banks are often used unknowingly to give an identity to Banksy (“Banksy Biography”). The true identity still to this day is uncertain. Banksy began his career in the early 90’s with a graffiti crew in Bristol called DryBreadZ (“Banksy Biography”). Banksy’s work is considered vandalism by law and critics but, it is meaningful art that portrays a powerful but, straightforward message. Banksy 's art is based on politics, war, hypocrisy, greed, societies issues, and even includes humorous messages ("Banksy Biography")
The rise of vandalistic art produced by Banksy and others, has altered the way in which the public views graffiti culture. Where spray paint once represented gangs and violence, it now suggests an exciting and cutting edge artform that could potentially be a lucrative investment. In fact, Banksy’s work is so sought after that people are willing to take bricks out of buildings in order to steal it. In 2013, one of Banksy’s most famous pieces of artwork was stolen from the side of a store in the UK. It was later discovered at a US auction (Banksy Artwork Taken). “Street art has entered the art world’s mainstream, with Banksy pieces regularly selling for more than $1 million” (Salib
The importance of legal positivism for legal practitioners is undoubted. The legal system, originating from two version being both English and Continental-European, has indeed undergone a process of evolution. Today, the existence of a separate legal view in society with its legal norms and a strict separation of law and morality is witnessed. An autonomous order has emerged in our modern society and law is now seen to be separate and self-sustaining with a normative function. There was no longer an external view of the legal system, as all law is man-made by the Parliament and thus a new theory was needed to understand and replace natural law. This was coherently put together as the ‘Pure Theory of Law’ by Hans Kelsen (1967), who has argued for the existence of a system of norms that binds judges. Thus, the fundamental assumption of legal positivism is that there is no room for the interpretation of law and judges are law-bound. Nevertheless, this notion of legal positivism has and is still being argued. The importance lies with the epistemological views that underpin these theories. Legal positivism therefore relies heavily on logical decisions and rationality; hence a judge’s subjective opinion, morality and interpretation has no room in legal practice. Yet, this view has been criticised on the grounds that legal positivism seems to be a theory of law and not really one of legal practice, as it often ignores what happens in courts. This is therefore a question of importance within a social theory of law that examines law from a very different dimension.
Legal science, also known as, judge made laws have been tedious to accept revolutionary changes. Such as the rejection to end slavery, Brandeis says that the courts continue “to ignore newly arisen social needs”. Business men and working men as said in the text agree that “the courts lack understanding of contemporary industrial conditions”; if the courts could uphold the contingency theory our society would always have the benefit. But instead “insist that the law is not up to date”, the best way to
Most people would agree that learning to read is a stepping stone to further educational pursuits for elementary school students. Unfortunately, reading proficiency in the United States of America by adolescent students indicates that there may actually be a problem of epidemic proportions in this nation. Two national reports- A Nation at Risk and the Report Card from the National Assessment of Educational Progress (NAEP) - indicate that there is indeed a crisis in our nation concerning students and literacy achievement. Recent data from the 2007 NAEP Report Card indicates that students’ achievement in reading and literacy skills has not positively changed for more than twenty years (as cited in Jacobs, 2008). While these statistics may seem bleak, there are some contributing factors that can be changed to help minimize these issues. The literature that I reviewed for this paper demonstrates the effectiveness of teaching reading strategies in the content areas as early as elementary school. This paper, will examine why and how effective elementary content area literacy may help to undo this d...
Banksy is a notorious graffiti artist, political activist, film director and painter in United Kingdom who is well known for his political and social themed artworks. His career as a graffiti artist first began in the early 1990s and he gradually became widely recognised around Bristol as he initiated performing his distinctive stencilling techniques. Most of his artworks were
Many other experts have debated over Sondheim’s views, all coming to the same conclusion that while the great American musical may no longer be sustained, there is a significant amount of change that has occurred in Broadway Musical Theatre since the golden age. This is evident in shows such as, The Full Monty, The Producers, Urinetown, Thoroughly Modern Millie and Hairspray that all broke the social constructs of what a musical should and could be. Many of them contain traditional Broadway musical elements but have been adapted from movies, taking on an original spoof, turning void hopes into filled theater seats – the ultimate sign of a successful theatrical trend. These shows also tacked their topics in ways unimaginable in the golden age of Musical Theatre, including interracial romance, male strippers and singing Nazis. Proving that through reincarnation and recognition Broadway has engaged the community in New York with newfangled takes on the classic Broadway musical and adapted it for modern audiences, keeping Broadway musical theatre alive and
For ages now, strain has been lingering and bubbling under the surface between the graffiti writers and street artists. The majority of passers-by merge and confuse one with the other. Unquestionably, there are notable distinctions between them. Most people that carry out graffiti are not coached or shown how to and they are constructed mainly on words, usually names or foul language scribbled on the walls. It arisen for teenagers as a way to reveal themselves. Typically, it is observed as self-centred as they use “tags” as a way to build up their own status. Conversely, street artists are predominantly those that have been professionally taught- their paintings will hold immense thoughts and a symbolic (hidden) meaning behind it, sometimes political. The prime difference, explained by Kate Murphy, an employee of Graff Tours is, “Street art is relatable, graffiti isn’t” In contrast to the writers, most artists prefer to remain anonymous. Artists do not do what they do for money, fame or attention. Conventionally, it will be to express themselves and other times it will be to convey an important and thought-provoking message, for instance, the renowned Banksy. While graffiti would come under the term ‘vandalism’, street art should
In my opinion I love Banksy artwork, the majority of people might consider his work to be vandalism, but to me Banksy is someone who does art because he is passionate about it. Seeing Banksy art work not only shows that he want to get messages across, but he also expresses his felling towards the problems that we are facing in this cruel, selfish world. The girl with the balloon is the art piece that stood out to me. I believe that every single piece that Banksy creates has a message behind it and it contains a powerful message. I believe that this art piece is a good one because it sending a message to all the people out there that lost hope or the motivation to life live to the fullest because of a bad experience or the lost of a love one. The message is telling those people that there is hope for everything in this world and that hope should be the last thing they loose during their life
Portraying law as a reciprocal affair involving a governmental command to the citizens and a governmental commitment to judge citizens according to these rules, loyalty to the precepts ensures that the duties imposed are that to which citizens will be held accountable. Increasing the law’s legitimacy in the population’s eyes, the principles guarantee that the law can be followed, reducing the possibility of sanction for a breach the subject was oblivious to. Providing “dependable guideposts for self-directed action,” and a legal system of fair opportunity, the Ful...