346 research outputs found
The Rise and Fall of Judicial Self-Restraint, 100 California Law Review: Translated from the Journal California Law Review 519 (2012)Richard A. Posner, The Rise and Fall of Judicial Self-Restraint, 100
No full textThe following translation is completed according to the publication: Richard A. Posner, “The Rise and Fall of Judicial Self-Restraint”, 100California Law Review 519 (2012).Richard A. Posner is one of the most influential scholars who served as a federal appellate judge on the U.S Court of Appeals for the 7th Circuit. This article discusses the origins and characteristics of the doctrine of Judicial Self-Restraint. The author reviews James Bradley Thayer’s constitutional doctrine which argues that judges should overturn a legislative act only when there is no reasonable doubt that it is unconstitutional. According to Posner, Thayer’s doctrine was approved and utilized by great American jurists including Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter and Alexander Bickel in their judicial and academic writings.
The paper suggests that one of the major reasons for declining the prominence of Judicial SelfRestraint was the development of modern Constitutional Theories (like originalism, textualism, moral interpretations, etc.) stimulated by the conservative backlash against the Warren Court’s Judicial Activism. Subsequently, Judge Posner makes the case for Judicial Pragmatism which emphasizes the significance of consequences over doctrine by offering the eight principles of legal pragmatism. And the author argues that the most highly regarded jurists in American legal history have always been pragmatists.The following translation is completed according to the publication: Richard A. Posner, “The Rise and Fall of Judicial Self-Restraint”, 100California Law Review 519 (2012).Richard A. Posner is one of the most influential scholars who served as a federal appellate judge on the U.S Court of Appeals for the 7th Circuit. This article discusses the origins and characteristics of the doctrine of Judicial Self-Restraint. The author reviews James Bradley Thayer’s constitutional doctrine which argues that judges should overturn a legislative act only when there is no reasonable doubt that it is unconstitutional. According to Posner, Thayer’s doctrine was approved and utilized by great American jurists including Oliver Wendell Holmes, Louis Brandeis, Felix Frankfurter and Alexander Bickel in their judicial and academic writings.
The paper suggests that one of the major reasons for declining the prominence of Judicial SelfRestraint was the development of modern Constitutional Theories (like originalism, textualism, moral interpretations, etc.) stimulated by the conservative backlash against the Warren Court’s Judicial Activism. Subsequently, Judge Posner makes the case for Judicial Pragmatism which emphasizes the significance of consequences over doctrine by offering the eight principles of legal pragmatism. And the author argues that the most highly regarded jurists in American legal history have always been pragmatists
Richard Posner summarizes: Legal realism as the response to the challenges of today
No full textRichard Posner, law professor at the University of Chicago and an American federal judge, one of the founders of economic analysis of law is among the greatest living representatives of contemporary American jurisprudence. This paper begins with the analysis of the influences of Posner's life on his theoretical orientation. Further on, the author shines a light on Posner's pragmatic, anti-formalistic approach and tendency to use economic analysis to explain judicial behavior. For that purpose, Posner uses ideas developed by American legal realism. Nevertheless, Posner distances himself from classical American legal realism, striving to create compromise between formalism and realism. Therefore, Posner takes centrist position, the position of 'balanced' realism. Though Posner tries to follow the middle way between extremes, in the light of contemporary challenges, most of all technological, he perceives the future in the realistic approach. The author claims that the Posner's pragmatic spirit, formed in his family and developed by his education and profession (his experience), had prevailing influence on his choice of legal realism in his late years. Particularly today, when life is much 'faster' than law, the judges are those who have to adapt the law to life (not only in common law countries). Therefore it seems that really 'the path forward is the path of realism'
COSMOPOLITISMO JUDICIAL: UMA AVALIAÇÃO DAS OBJEÇÕES DE POSNER AO RECONHECIMENTO DE DECISÕES JUDICIAIS ESTRANGEIRAS COMO “SHOULD-SOURCES OF LAW"
No full textThis article aims to evaluate Posner\u27s objections to some justices of the U. S. Supreme Court’s stance of judicial cosmopolitanism. This research is theoretical and qualitative. It uses bibliographic content analysis as a methodological procedure and displays a theoretical framework composed of: 1) the distinction between context of discovery and context of justification – Reichenbach; 2) The structured dynamic embedded in the mutual paranoia between an irrational impulse for justice and the need for its translation (re-entry) to legal system’s language game in the context of justification of judicial opinions – Teubner; 3) the distinction between "mustsources", "should-sources" and "may-sources" of law – Peczenik; 4) the concepts of "transconstitutional dialogue" between legal orders belonging to the global legal system – Marcelo Neves – and "engagement model” between domestic law and foreign legal decisions – Vicki Jackson; and 5) the search for balance between constitutional courts\u27 passive and active virtues – Conrado Mendes. The main obtained result was finding that Posner\u27s criticism concerns the qualification of foreign decisions as "should-sources" instead of "may-sources" in the context of justification of U.S. courts\u27 decisions. As a conclusion, this article’s working hypothesis – the inevitable communication between legal orders involved in similar constitutional controversies makes Posner’s objections to the stance of judicial cosmopolitanism unsustainable – was confirmed. RESUMO
Este artigo tem como objetivo geral avaliar as objeções de Posner à postura de cosmopolitismo judicial assumida por alguns membros da Suprema Corte estadunidense. Trata-se de pesquisa teórica, qualitativa, que utiliza o procedimento metodológico da análise de conteúdo bibliográfico e que assume como componentes de seu referencial teórico: 1) a distinção, popularizada por Reichenbach, entre contextos de descoberta e de justificação; 2) A dinâmica estruturada visualizada por Teubner na paranoia mútua entre um impulso irracional por justiça e a necessidade de sua tradução ("re-entry”) para o jogo de linguagem do sistema jurídico na fundamentação das decisões judiciais; 3) a distinção entre "must-sources”, “should-sources” e “may-sources", categorias assumidas por Peczenik ao classificar as fontes do direito; 4) as noções de diálogo transconstitucional, conforme a leitura de Marcelo Neves sobre a interação entre ordens jurídicas pertencentes ao sistema jurídico mundial, e de modelo de articulação, nos moldes do pensamento de Vicki Jackson sobre a relação entre o direito doméstico e decisões judiciais estrangeiras; e 5) a defesa do exercício equilibrado das virtudes passivas e ativas por parte das cortes constitucionais, à la Conrado Mendes. O principal resultado obtido foi a percepção de que a crítica de Posner diz respeito à qualificação das decisões estrangeiras, no contexto de justificação das decisões dos tribunais estadunidenses, como "should-sources”, mas não como "may-sources”. Concluiu-se pela confirmação da hipótese de que as objeções de Posner à postura de cosmopolitismo judicial não se sustentam no cenário contemporâneo de inevitável comunicação entre ordens jurídicas envolvidas em controvérsias constitucionais similares
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Law and Social Norms /
No full textWhat is the role of law in a society in which order is maintained mostly through social norms, trust, and nonlegal sanctions? Eric Posner argues that social norms are sometimes desirable yet sometimes odious, and that the law is critical to enhancing good social norms and undermining bad ones. But he also argues that the proper regulation of social norms is a delicate and complex task, and that current understanding of social norms is inadequate for guiding judges and lawmakers. What is needed, and what this book offers, is a model of the relationship between law and social norms. The model shows that people's concern with establishing cooperative relationships leads them to engage in certain kinds of imitative behavior. The resulting behavioral patterns are called social norms. Posner applies the model to several areas of law that involve the regulation of social norms, including laws governing gift-giving and nonprofit organizations; family law; criminal law; laws governing speech, voting, and discrimination; and contract law. Among the engaging questions posed are: Would the legalization of gay marriage harm traditional married couples? Is it beneficial to shame criminals? Why should the law reward those who make charitable contributions? Would people vote more if non-voters were penalized? The author approaches these questions using the tools of game theory, but his arguments are simply stated and make no technical demands on the reader
Shifting attention in viewer- and object-based reference frames after unilateral brain injury
No full textThe aims of the present study were to investigate the respective roles that object- and viewer-based reference frames play in reorienting visual attention, and to assess their influence after unilateral brain injury. To do so, we studied 16 right hemisphere injured (RHI) and 13 left hemisphere injured (LHI) patients. We used a cueing design that manipulates the location of cues and targets relative to a display comprised of two rectangles (i.e., objects). Unlike previous studies with patients, we presented all cues at midline rather than in the left or right visual fields. Thus, in the critical conditions in which targets were presented laterally, reorienting of attention was always from a midline cue. Performance was measured for lateralized target detection as a function of viewer-based (contra- and ipsilesional sides) and object-based (requiring reorienting within or between objects) reference frames. As expected, contralesional detection was slower than ipsilesional detection for the patients. More importantly, objects influenced target detection differently in the contralesional and ipsilesional fields. Contralesionally, reorienting to a target within the cued object took longer than reorienting to a target in the same location but in the uncued object. This finding is consistent with object-based neglect. Ipsilesionally, the means were in the opposite direction. Furthermore, no significant difference was found in object-based influences between the patient groups (RHI vs. LHI). These findings are discussed in the context of reference frames used in reorienting attention for target detection
The Alert Collector: Yoga in the Library—A Research Guide
No full textWhether you want to update your library’s shelves of yoga books or support academic research in Eastern spirituality and Hinduism, this issue’s column on yoga resources should be of great benefit. The author has compiled an excellent list of sources for both the practitioner of this ancient art and those curious about the philosophy behind it.—Editor</jats:p
Growing Our Own: A Regional Leadership Challenge
No full textThis chapter describes a leadership institute based on the theories of Kouzes and Posner created in Rochester, NY. Participants were surveyed 10 and 12 years after their participation about the impact of the institute on their career and leadership style. The leadership characteristics taught in the institute are compared to leadership characteristics proposed by two library organizations. Due to the similarity, the author suggests future institutes aligned with Kouzes and Posner would be a good way to train future library leaders
Ethical Criticism of Literature. The Debate between R. Posner and M. C. Nussbaum about the Public Role of Literature
No full textČlanak želi doprinijeti tzv. etičkom preokretu koji se u zadnjim desetljećima legitimirao na mnogim društveno-humanističkim područjima, i to s obzirom na književnu kritiku koja se na anglosaksonskom području sve više dovodi u vezu s etičkim preokupacijama teksta, dok je kod nas taj trend još uvijek gotovo neprimijećen. Nakon kratkog uvoda u povijest složenog i turbulentnog odnosa etike i književnosti, autorica predstavlja dvije suprotstavljene tendencije, odnosno dva različita stava spram etičke funkcije koju književnost u sebi integrira. S tim ciljem predstavlja stajališta Richarda Posnera, koji zastupa autonomističko stajalište o isključivom primatu estetike kada se govori o književnosti, te Marthe C. Nussbaum koja zastupa stav da književnost u sebi ima veliki etički potencijal te može služiti kao nadopuna teorijama filozofije morala kao i društveno-pravnim teorijama. Autorica se priklanja Nussbauminoj koncepciji zbog njezinog pluralističkog pristupa književnosti i šireg shvaćanja moralnosti.The article has intention to contribute to the so-called “ethical turn”, which in the last decades has been legitimated in many social and humanistic fields, especially with regard to the literary criticism of the Anglo-Saxon area that is more associated with the ethical concerns of the text, while in Croatia this trend is still practically overlooked. After a brief introduction to the complex and turbulent history of relations between ethics and literature, the author presents two opposing tendencies or two different attitudes towards the ethical function that literature integrates. For this purpose, author introduce a view of Richard Posner, who represents the autonomist position on the exclusive primacy of aesthetics when it comes to literature, and Martha C. Nussbaum, which represents the view that literature in itself has great ethical potential and can serve as a supplement to theories of moral philosophy as well as socio-legal theories. The author is inclined to Nussbaum’s concept because of its pluralistic approach to literature and the broader conception of morality
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