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LEGAL THEORY
JUDGE POSNER ON JUDICIAL BEHAVIOR
Richard A. Posner (2010). ‘Nine Theories of Judicial Behavior,’ How Judges Think
(Cambridge: Harvard University Press), pp. 19-56.
INTRODUCTION
How do judges really think?
This is by no means an easy question to answer. Judge Richard A. Posner points out
that there are as many as nine theories of judicial behaviour, but none of them can
describe all the concerned aspects. So what Judge Posner decides to do in this essay
is to simply describe all these nine theories in the attempt to set out what is at stake
in studying judicial behaviour. These theories are positive – i.e. they explain how
political and legal theorists think judges really behave. The reason that judicial
behaviour is important is that it helps legal theorists to understand the rationale
behind judicial decisions. The stability and continuity of the law depends on being able
to predict to some extent what judges will do in any given situation. That however
does not mean that either theorists or judges are able to reduce the legal system to a
collection of rules though they toy with such a possibility every now and then. But,
nonetheless, what students of the law need to do is to apply their minds seriously to
explaining how judges think and behave. Reading Judge Posner’s book is a great
way to start thinking about judicial behavior. Judge Posner has served for long as
both Judge and Chief Judge of the Court of Appeals, Seventh Circuit, at Chicago and

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teaches law at the University of Chicago’s Law School. Judge Posner is therefore in a
position to draw from both his knowledge of legal theory and the many years of
judicial experience that he has picked up at the Court of Appeals. Most of these
theories are mainly focused on judges in the appellate courts. So that is a point that
the reader should keep in mind.
ON JUDICIAL BEHAVIOR
What are these nine theories of judicial behavior? What do they seek to explain?
Which of these is the most explanatory?
While it is not clear which of these theories is the most explanatory, the nine theories
describe judicial behavior from the point of view of the following categories: ‘the
attitudinal, the strategic, the sociological, the psychological, the economic, the
organizational, the pragmatic, the phenomenological’ and the ‘legalistic.’ Judge
Posner puts the ‘legalistic’ in a separate category because that is the doctrine
subscribed to by the highest courts in the United States. The preoccupation with stare
decisis, for instance, is related to the legalistic model of decision-making in the
appellate courts. So it is important to remember that how members of the judiciary
describe their decision making is different from how legal academics describe
judicial behavior. While most judges think these theories have something interesting
to say about the factors that determine judicial decision making, they will describe
themselves as doing something that is ‘internal’ to the law itself. That means they
spend most of their effort relating previous decisions to present decisions. Judicial
behavior is basically an attempt to ensure that the relationship between ‘precedential
courts’ and ‘decisional courts’ is made obvious in the judicial decision so that it is

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not necessary for the litigants to refer to anything other than the decision itself to
figure out the rationale for what the judges are saying. So whether or not the law is
‘autonomous’ in reality, the rhetorical form of the judicial opinion works within a
legalistic model that differentiates between a legal solution to a legal problem and a
non-legal solution in any given case. So, unlike arbitration, the judiciary works
mainly within a legalistic approach to decision making. While judges do incorporate
the relevant economic, psychological, and sociological data during oral arguments,
they attempt to find a basis for their decisions in the law itself. They also try, if
possible, to relate present decisions to previous decisions in the attempt to arrive at a
solution in the interests of treating all litigants alike.
THE JUDICIAL OFFICE
What Judge Posner is trying to do in this essay, and in the book in which this essay
appeared, is to fill in the gap within theories of judicial behavior by taking an
‘eclectic’ approach to his subject. This is a pragmatic way of saying that each of these
theories is useful but only up to a point. We must remember that they cannot explain
all the phenomena involved in studying how judges think. Of course, ‘how judges
think’ is not the same as ‘judicial behavior’ in its entirety. Not all their thoughts are
translated into action in the course of judicial decision making that can be objectively
described using any of these nine approaches. That is why a multi-factorial
explanation of judicial behaviour is required. What would the difference be between
a book that is titled ‘how judges behave’ compared to ‘how judges think’? That is the
aspect of the title which requires more explanation. This is all the more important
because judges are allowed to hold office on the assumption that they will be well-
behaved. The relevant phrase that describes their tenure is that they hold office
‘during good behavior.’ This is important because judges are usually well-behaved
and instances of impeachment are rather few in the history of the law. But, going
forward, what such theories will have to grapple with is the analytic difference and
the relationship between ‘how judges think’ and ‘how judges behave.’ We must
therefore be careful to not use these terms as though they were the same; they are
not. Just as there are gaps within theories of judicial behavior there could well be

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gaps between ‘how judges think’ and ‘how judges behave’ that they may not be
conscious of. That gap is how the unconscious affects both ‘how judges think’ and
‘how judges behave.’ That then is what I think is at stake in determining the forms of
thought and behavior that constitute the pre-conditions for interpreting judicial
decisions if we want to go beyond the controversies in the case itself to formulating a
theory of either how judges think, or how judges behave, or relate these phenomena
to each other.
ATTITUDINAL THEORIES
Let me now describe what Judge Posner has to say about each of these nine theories.
The attitudinal theory is an attempt to understand judicial decisions in terms of
political preferences. Since judges are appointed by the President, it is likely that
they will be of similar political persuasion or, if not, at least try to maximize their
areas of agreement. What attitudinal theorists basically do is to deploy an empirical
analysis of a judge’s decisions to find out whether it conforms to the political
ideology of the President who appointed him to the bench. Another source of
evidence is to ascertain when judges retire. Do they retire in a way that makes it
possible for the President to appoint another judge in their place who would be like-
minded in terms of political ideology? That is often the case and Judge Posner
explains the significance of such behaviour from an attitudinal point of view. Judge
Posner also describes the strengths and limitations of the attitudinal model before
moving on to the sociological model of judicial behaviour.
SOCIOLOGICAL THEORIES
What the sociological model focuses on is ‘small group dynamics.’ What this means
is that the composition of any given bench is what these theorists choose to study.
The tools required to do so are drawn from areas like social psychology and rational
choice theory. This approach is important for appellate courts because their benches
are drawn from panels of three judges from the many who are available to hear a
particular case. It may however be less useful if the bench always has the same
composition like the Supreme Court in which all the nine members have to attend to
every single case unless they happen to recuse themselves for whatever reason. The

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main idea that Judge Posner invokes is ‘dissent aversion’ because Judges who are in
the majority would prefer a unanimous decision. So a dissenting Judge might be less
likely to dissent if his point of view were taken seriously by the majority; that will
also enhance the impact of the decision as a whole. Panel composition studies are
important because it helps legal experts to understand how liberals and
conservatives affect each other’s positions in the attempt to arrive at a common
decision. Jury dynamics can also be studied using the panel composition model.
PSYCHOLOGICAL THEORIES
The main function of the psychological approach is to come to terms with the
‘uncertainty’ that characterizes the legal system. This is also because uncertainty
renders conventional approaches to decision making irrelevant in understanding
how judges decide. So now we are not only confronted by the problem of ‘how
judges think,’ but also ‘how judges behave’ and ‘how judges decide.’ The economic
approach to judicial behaviour is about applying the model of ‘rational
maximization’ to judges. Judge Posner then analyses the various attributes of the
judicial utility function and points out that the strategic and sociological aspects can
be subsumed under the utility function.
An interesting idea that readers may not have been previously acquainted with is
the ‘leisure preference’ for judges and whether that increases the probability that
they will encourage the parties to settle out of court. It is also important to remember

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that a model of rational calculation will not explain all psychological factors though
rational calculation itself is a psychological factor. So there are cognitive and
emotional factors that have to be included under the category of the psychological as
well.
ECONOMIC THEORIES
Economic approaches to judicial behaviour also use agency theory where the judge
is in the locus of the agent and the problems of agency behaviour are then used to
analyse judicial behaviour. Needless to say, this approach does not recognize that
judges are supposed to have some autonomy to get their jobs done objectively, but
that is less likely to be the case for the agent in agency theory whose job description
does not necessarily involve autonomy. Judge Posner invokes the role of precedents
as a way of mitigating the incentives to behave like an agent since judges who
adhere to precedent are more likely to find that their precedents will be taken
seriously by the lower courts. Judicial errors are also likely to be minimized if judges
can demonstrate that their decisions emerge from within the common law or case
law in a given area.
PRAGMATIC THEORIES
The main aspect of pragmatic approaches is that they focus on the consequences of
judicial decision making rather than on the logical aspects underlying the decisions.
In that sense, it is related to areas like utilitarianism and welfare economics. That is
because consequential thinking is interested in who will gain or lose in any given
decision and judges are under pressure to do what is in the best interests of social
welfare when they encounter a gap in the law. So judges with a pragmatist
orientation are less likely to worry about the exact wording of a statute or with rules
if the consequences will be worse than if they had not arrived at a decision at all. A
decision is only a means to an end; and the ends can be invoked either through a
model of utilitarianism or social welfare. The law, they believe, does not exist in and
for itself. It is only a means to an end. While this is true, the limitation of this model
is that it leads to a conflict between what the judges prefer as opposed to what the
legislature or the litigants prefer in any given case.

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PHENOMENOLOGICAL THEORIES
The phenomenological approach is more interested in what it feels like to make a
judicial decision; a number of judges have written about this aspect of their work.
While psychological approaches are interested in the role that the unconscious plays,
here the focus is on consciousness. These approaches are loosely derived from the
philosophy of consciousness in European philosophy. There is a lot of this in
Benjamin Cardozo’s Storr Lectures on the legal process, but a close reading of that
text will reveal that he is also interested in the psychological approach. That is why I
think what these judges mean by phenomenology is not the same as what European
philosophers mean by phenomenology.
STRATEGIC & ORGANIZATIONAL THEORIES
The strategic dimension relates to the judges’ awareness that he has to take his
colleagues along and dissenting too often will make it difficult to find common
ground in cases where a bit of compromise will make it possible for his decision or
approach to judging to prevail within the Court.
It also relates to how a Chief Justice like John Roberts gets the Court to speak with a
high level of unanimity by mediating the give-and-take between judges of varying
political persuasions by first focusing on what they can all agree on rather than
produce any number of concurring opinions and dissents from the bench. The
organizational dimensions relate to how the legitimacy of the judiciary will be
affected if judges forget the need to co-operate with other organs of government
since the legal system is based on the doctrine of the ‘separation of powers.’ The
legal system is interdependent. The judges must above all be careful about what they

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say and do because they cannot directly either fund themselves or enforce their
decisions. The functioning of the legal system then is based on respect for rule of law
and the belief that while the judiciary is powerful there are also in-built constraints
to the exercise of that power through the ‘checks-and-balances’ that constitute the
American legal system and how it relates to the government.
LEGALIST APPROACHES
The legalist approach is basically what is described as the ‘rule of law.’ It is difficult
for the lay person to tell that it is just another approach because it comes across as the
legal ideology in place in a legal system. This model argues that the law is no more
than what can be found within written texts like the constitution or statutes. It is
what we mean by the rule of law rather than the rule of men. This approach assumes
that legal functionaries will come and go but the law goes on forever. In terms of
methodology, what legalism argues is that the law supplies the major premise, the
case facts constitute the minor premise, and the decision which is arrived at when
the major premise is related to the minor premise is the conclusion of the case. The
attractiveness of this approach is related to the fact that this seems rather obvious in
theory, though legal practitioners know that it is always the rule of law and the rule
of men in the world of practice. It is not a matter of indifference to any practicing
attorney as to who the judge is in any given case or what the panel composition is in
the Court of Appeals. So for those who are not inclined to theorize any further, let us
say that it is not possible to succeed in the world of practice if both aspects are not
taken seriously.
CONCLUSION
The law is what it is but it is subject to interpretation since it won’t speak for itself
and the course of the law is not subject to exact prediction. Furthermore judges have
a lot of discretion; the higher up they are, the greater the amount of discretion they
have in terms of which case they will hear or not hear. Discretionary determination
involves what the judges will hear, when they will hear, and whether they will hear
the case at all; and in the context of the appeals process how many times and at how
many levels they will hear the case. That is why the whole question of ‘how judges

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think,’ ‘how judges behave,’ and ‘how judges decide’ are all equally important and
we must situate these phenomena within the levels of the judicial hierarchy at which
we are studying judicial behaviour. Most of the research in these areas happens at
the level of the appellate courts and not at the levels of those judicial functionaries
who actually conduct trials. Since most decisions are not appealed or reversed on
appeal in any legal system, we must make a serious attempt to understand how
judges think, behave, and decide at the lower levels as well. Only then will the
clinical dimensions of the interaction between ‘the rule of law’ and the ‘rule of men’
become obvious to practitioners. I have never met a successful lawyer who thought
that the judge was less important than the law or that the interaction between the
law, the judge, and the legal process can be understood as distinct categories.
That is why Judge Posner points out in his conclusion that even while the Supreme
Court is a political court, even ‘in its most political domain, that of constitutional
law,’ it ‘is, to a degree, legalistic.’
SHIVA KUMAR SRINIVASAN