In his new book, How Judges Think, Judge Richard Posner makes two central claims.  First, Posner argues that judges are not generally formalistic in their decision making; they are mostly pragmatic.  Secondly, Posner argues that pragmatic judicial decision making is beneficial to society and should be encouraged.  In his review of Posner’s book, Frank B. Cross generally agrees with Posner’s central claims, finding that the evidence supports Posner’s contentions and that the case for judicial pragmatism is even stronger than Posner’s book might suggest.

Cross begins by clarifying what is meant by Posnerian pragmatism and evaluating Posner’s claim that the judiciary is pragmatist.  Acknowledging that the evidence shows that pragmatism is an undeniable part of judicial decision making, Cross nevertheless concludes that the evidence cited in Posner’s book falls short of demonstrating that judges are commonly pragmatic.  Cross also considers the normative question of whether judges should be pragmatists, responding to arguments that pragmatism gives judges too much discretion.  He presents evidence showing that pragmatism actually constrains judges more than other philosophies and notes the lack of evidence of judges faithfully employing the other approaches they purport to invoke.

Ultimately, Cross agrees with Posner’s contention that the judicial model of pragmatism is preferable to any number of alternatives.  Of course, he argues, every approach, if adhered to without exception, will result in numerous “wrong” decisions, but a pragmatic approach to judicial decision making is best suited for the evolution and correction of bad decisions into “good” decisions.  Like Posner, Cross would place his trust in judges to direct the evolution of the law in the manner that most benefits society.