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How Posner Thinks

“The law is good, if a man use it lawfully.”

—1 Timothy 1:8

Richard Posner is one of the greatest judges never to have sat on the Supreme Court of the United States.  A distinguished professor at the University of Chicago, a judge on the U.S. Court of Appeals for the 7th Circuit for 25 years, and chief judge of that Court for seven years, he might have expected by dint of sheer brilliance alone to have been elevated to the highest bench in the land.  Probably, his nomination could not have been confirmed by the Senate.  Posner once candidly observed that our law permits killing or wounding people to protect a property interest, and he has toyed with the notion that putative adoptive parents should be allowed to purchase babies on the open market.  Posner’s provocative demeanor is on display once more in his latest book.  He is surely one of the most prolific authors (if not the single-most) among sitting federal judges, having published dozens of monographs.  How Judges Think may be one of his most accessible works.  It is also one of the most intriguingly ironical, given its theme that judges not only are inescapably political, but should be.

American judges do not, Posner argues, always do what most Americans, and most American judges, believe they do: that is, apply the Constitution, statute...

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