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Chad M. Oldfather, Limitations (A Response to Judge Posner), 51 Duq. L. Rev. 67 (2013)

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51 Duquesne Law Review 67 (2013)


In his article Judicial Opinions and Appellate Advocacy in Federal Courts - One Judge's Views, Judge Richard Posner urges his judicial colleagues to be mindful of their limitations ­- 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.

This essay, part of a symposium devoted to Judge Posner's article, seeks both to amplify this insight, in part by suggesting that Judge Posner's analysis and prescriptions are affected by his own limitations. His career experiences, substantial intellect, and ability to write quickly render him unable to appreciate fully the capacities and perspectives of his judicial colleagues and the lawyers who appear before him. This results in him asking lawyers to provide information that they are unable to deliver, or that his judicial colleagues are unwilling (or unable) to put to appropriate use. I further contend that mere exhortation ­that judges be mindful of their limitations, and that lawyers be mindful of the needs of judges ­ is not enough. The systems and processes of adjudication must be tweaked to account for participants' limitations, and to provide greater incentives for appropriate action.

The essay also explores Judge Posner's treatment of appeals in criminal cases, which reflects acceptance of the widespread assumption that factual guilt is established in these cases. This assumption, I suggest, represents another failure to recognize the limitations of the various actors in the criminal justice system.

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