How Great Judges Think: Judges Richard Posner, Henry Friendly, and Roger Traynor on Judicial Lawmaking

Abstract

In his 2008 book, How Judges Think, Judge Richard Posner has written that in the "open area," where conventional legal materials – the Constitution, statues and prior decisions – "fail to generate acceptable answers to . . . legal questions that American judges are required to decide, judges perforce have occasional – indeed rather frequent – recourse to other sources of judgment, including their own political opinions or policy judgments." At these times judges "are legislators as well as adjudicators."

This Article demonstrates that this is a view that was shared by two of the great judges of the twentieth century: Roger Traynor and Henry Friendly. And it is a perspective that places each of these judges at odds with the dominant jurisprudential movements of their respective eras – the legal process school in Traynor's and Friendly's case and the moral, constitutional, jurisprudential, and formalist (including originalist) theorists in Posner's. The theorists, in other words, are out of touch with the reality of judicial lawmaking as it has been understood, and articulated, by the great judges who have shaped, and are continuing to shape, our law.

Unlike the theories of many, if not most, contemporary academics, the perspective shared by Traynor, Friendly, and Posner is not liberal or conservative – as can be seen in the vastly different ideologies of Traynor and Posner. And it is not original. It is the framework articulated by our greatest judge, Oliver Wendell Holmes.

Keywords: judges, jurisprudence, torts, legal history

JEL Classification: K1, K10, K13