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The Pragmatism Of Interpretation: A Review Of Richard A. Posner, The Federal Judiciary, Amul R. Thapar, Benjamin Beaton
The Pragmatism Of Interpretation: A Review Of Richard A. Posner, The Federal Judiciary, Amul R. Thapar, Benjamin Beaton
Michigan Law Review
A review of Richard A. Posner, The Federal Judiciary.
Judge Posner's Simple Law, Mitchell N. Berman
Judge Posner's Simple Law, Mitchell N. Berman
Michigan Law Review
The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, for judges to achieve “sensible” resolutions of real-world disputes—by which Judge Posner means “in a way that can be explained in ordinary language and justified as consistent with the expectations of normal people” (p. 354)—they must be able to navigate the world’s complexity successfully. To apply legal rules correctly and (where judicial lawmaking is called for) to formulate legal rules prudently, judges must understand the causal mechanisms and processes that undergird complex systems, and they must be able to draw sound factual …
The Real Formalists, The Real Realists, And What They Tell Us About Judicial Decision And Legal Education, Edward Rubin
The Real Formalists, The Real Realists, And What They Tell Us About Judicial Decision And Legal Education, Edward Rubin
Michigan Law Review
The periodization of history, like chocolate cake, can have some bad effects on us, but it is hard to resist. We realize, of course, that Julius Caesar didn’t think of himself as “Classical” and Richard the Lionhearted didn’t regard the time in which he lived as the Middle Ages. Placing historical figures in subsequently defined periods separates us from them and impairs our ability to understand them on their own terms. But it is difficult to understand anything about them at all if we try to envision history as continuous and undifferentiated. We need periodization to organize events that are …
Interpretation And Institutions, Cass R. Sunstein, Adrian Vermeule
Interpretation And Institutions, Cass R. Sunstein, Adrian Vermeule
Michigan Law Review
Suppose that a statute, enacted several decades ago, bans the introduction of any color additive in food if that additive "causes cancer" in human beings or animals. Suppose that new technologies, able to detect low-level carcinogens, have shown that many potential additives cause cancer, even though the statistical risk is often tiny - akin to the risk of eating two peanuts with governmentally-permitted levels of aflatoxins. Suppose, finally, that a company seeks to introduce a certain color additive into food, acknowledging that the additive causes cancer, but urging that the risk is infinitesimal, and that if the statutory barrier were …
Reply: The Institutional Dimension Of Statutory And Constitutional Interpretation, Richard A. Posner
Reply: The Institutional Dimension Of Statutory And Constitutional Interpretation, Richard A. Posner
Michigan Law Review
Cass Sunstein and Adrian Vermeule argue in Interpretation and lnstitutions that judicial interpretation of statutes and constitutions should take account both of the institutional framework within which interpretation takes place and of the consequences of different styles of interpretation; they further argue that this point has been neglected by previous scholars. The first half of the thesis is correct but obvious; the second half, which the authors state in terms emphatic to the point of being immodest, is incorrect. Moreover, the authors offer no feasible suggestions for how the relation between interpretation and the institutional framework might be studied better …
Interpretive Theory In Its Infancy: A Reply To Posner, Cass R. Sunstein, Adrien Vermeule
Interpretive Theory In Its Infancy: A Reply To Posner, Cass R. Sunstein, Adrien Vermeule
Michigan Law Review
In law, problems of interpretation can be explored at different levels of generality. At the most specific level, people might urge that the Equal Protection Clause forbids affirmative action, or that the Food and Drug Act applies to tobacco products. At a higher level of generality, people might argue that the Equal Protection Clause should be interpreted in accordance with the original understanding of its ratifiers, or that the meaning of the Food and Drug Act should be settled with careful attention to its legislative history. At a still higher level of generality, people might identify the considerations that bear …