Annual Hallows Lecture by Judge Sarah Evans Barker

Description

In his influential book, How Judges Think (Harvard, 2008), Judge Richard A. Posner identifies what he refers to as an "open area" or space "in which the orthodox (the legalist) methods of [judicial] analysis yield unsatisfactory and sometimes no conclusions, thereby allowing or even dictating that emotion, personality, policy intuitions, ideology, politics, background, and experience will determine a judge's decision." He observes that, in performing the judicial role in this open area, a judge necessarily, indeed, quite appropriately, acts as a legislator. Such an approach, Judge Posner argues, not only is unavoidable, but is a good thing.

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