The Federal Judiciary: Strengths and Weaknesses. By Richard A. Posner

The Federal Judiciary: Strengths and Weaknesses. By Richard A. Posner.
Harvard University Press 2017.
ISBN: 0674975774, 9780674975774.

No sitting federal judge has ever written so trenchant a critique of the federal judiciary as Richard A. Posner does in this, his most confrontational book. Skewering the politicization of the Supreme Court, the mismanagement of judicial staff, the overly complex system of appeals, the threat of originalism, outdated procedures, and the backward-looking traditions of law schools and the American judicial system, Posner has written a cri de coeur and a battle cry. With the prospect that the Supreme Court will soon be remade in substantial, potentially revanchist, ways, The Federal Judiciary exposes the American legal system’s most troubling failures in order to instigate much-needed reforms.

Posner presents excerpts from legal texts and arguments to expose their flaws, incorporating his own explanation and judgment to educate readers in the mechanics of judicial thinking. This rigorous intellectual work separates sound logic from artful rhetoric designed to subvert precedent and open the door to oblique interpretations of American constitutional law. In a rebuke of Justice Antonin Scalia’s legacy, Posner shows how originalists have used these rhetorical strategies to advance a self-serving political agenda. Judicial culture adheres to an antiquated traditionalism, Posner argues, that inhibits progressive responses to threats from new technologies and other unforeseen challenges to society.

With practical prescriptions for overhauling judicial practices and precedents, The Federal Judiciary offers an unequaled resource for understanding the institution designed by the founders to check congressional and presidential power and resist its abuse.


Table of Contents

Introduction: Noting Weaknesses and Strengths, and Proposing a New Research Agenda
1. Some Weaknesses of Our Legal System Mistakenly Denied by a Critic
2. Tier One of the Federal Judiciary: The Supreme Court
Prefatory Remarks
Part One
Part Two
3. Tier Two of the Federal Judiciary: The Federal Courts of Appeals
4. Tier Three of the Federal Judiciary: The Federal District Courts
5. Civil Litigation Revisited


“Posner’s newest book is a delightfully iconoclastic critique of ideas many judges and academics hold dear, full of interesting, original, and wide-ranging claims for reform in the federal judiciary and law school teaching.”—Victoria Nourse, author of Misreading Law, Misreading Democracy

“In this book on the federal judiciary, Judge Posner takes aim at every sacred legal cow: the Supreme Court and its Justices; law schools; the existence, even desirability, of apolitical judges. His critique of the federal bench as dangerously enthralled to backward-looking judicial standpattism will be controversial, as will his proposals for reform, but they cannot be ignored.”—William D. Popkin, Indiana University Maurer School of Law


Richard A. Posner is Circuit Judge, the United States Court of Appeals for the Seventh Circuit, and a senior lecturer at the University of Chicago Law School.

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