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Duquesne Law Review

Abstract

Among the advice that Judge Posner offers to his fellow judges is the suggestion that they remain mindful of their limitations:

"I suggest that when trying to make up his mind about which way to vote, the judge remind himself of his limitations (limitations that all judges have)-the limitations of his knowledge of the law, the limitations of his knowledge of the case at hand, the limitations of his knowledge of the real-world context of the case, and the limitations (or distortions) of his thinking that result from the biases that all judges bring to judging. Not that it is wrong, let alone possible, to judge without biases. ... But one should try to be aware of one's priors, so that they do not exert too great an influence on one's judicial votes."

There are echoes here of what is, for me, one of the more apt descriptions of the proper judicial mindset. It comes from a talk that Justice David Souter gave at Stanford Law School. Justice Souter was speaking at the memorial service for Professor Gerald Gunther, and he referenced the judicial style of Judge Learned Hand, drawing upon the depiction provided by Gunther in his biography of Hand:

"I read Gerry's book, and found out what Hand was actually like: indisposed to call the wall facing him black or white, judging with a diffidence near to fear sometimes, deciding a case only because he had no escape. . . . [P]artway through [the book], we're apt to think what a misalignment of mind and duty."

"Then we read some more, and the man and the job seem to reconcile . . . . The chronic evenhandedness compelled the judge to come out and say what he was really choosing between; the torment of competing reasons forced him to face the very facts that placed his principles in tension; and not just face the facts, but heft them and feel their weight until finally the needle of his mind moved off dead center. . . . [A]s that understanding emerges in our minds, it comes with a companion question: If Hand is the prototype good enough for Gerry Gunther . . . why not for every judge who reads the book?"

"There's no mistaking Gerry's answer, that Learned Hand's necessities are every judge's common obligations: suspicion of easy cases, skepticism about clear-edged categories, modesty in the face of precedent, candor in pitting one worthy principle against another, and the nerve to do it in concrete circumstances on an open page."

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