Judges and Judgment: In Praise of Instigators

This essay celebrates judicial instigators, and Judge Richard Posner as instigator. It embraces a view of the judicial system as a system, one that can best achieve its myriad aims only if there is some variety in its constituent parts. Having some judges, some of the time, willing to ask hard questions about what the law is and should be is critical to ensuring the law achieves its intended aims. This essay illustrates this point by weaving together a single case about mutual fund fees with personal observations accumulated over a year as a clerk to Judge Posner and Posner’s writings about how he judges. This analysis paints Posner as a jurist aware of his own humanity, attuned to the humanity of those before him, and willing to allow both to shape his judgment. This particular breed of pragmatism, and Posner’s willingness to openly question a law’s aims and effects, often enabled him to tee up issues in ways that enhanced the law. The judicial system would not be well served if all judges were carbon copies of Judge Posner, but it is far better off today because of his thirty-five years on the bench