A Conversation with Judge Posner

In 2008, Judge Posner published “How Judges Think”, that takes up the prevailing theories about what motivates judges’ decisions and adds his own, heavily grounded in the notion that judges’ experiences and backgrounds play a large role where decision outcomes are uncertain. Judges — at least the vast majority — are pragmatists according to this view, and they seek to maximize various goals within a legal tradition that imposes its own vision of what it is to be a “good judge.” What follows below is an edited account of a conversation that Judge Posner had with a class on the study of judicial behavior at Duke Law School a few years ago. The class had read the book as part of a year-long review of the empirical literature on judicial decisionmaking. Their conversation with Judge Posner ranged over various topics, including reaction to the book from other judges, Posner’s own experience as a judge, and future directions for empirical studies of the judiciary.