Document Type

Working Paper

Publication Date

5-11-2008

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals

Abstract

This is a short review of two new books on judging Constitutional Conscience The Moral Dimension of Judicial Decision by H Jefferson Powell and How Judges Think by Richard A Posner Although both books examine the same topic and both focus largely on judicial decision making by Supreme Court Justices in the area of constitutional law their approaches diverge significantly Powell takes a page from virtue ethics in offering an expansive and ruminative vision of the ethical virtues and vices that characterize the judge in a constitutional case Posner brings his economists toolkit supplemented by a variety of disciplinary adjuncts and a bracing dose of pragmatism to many of the same questions Their goals are somewhat different and their conclusions despite some common ties present a striking contrast These books may be read as complementary and not just competitive accounts Nevertheless I suggest that Posners account is far more descriptively accurate although Powell leads us commendably to think about the ways in which we might reconsider and revive the kinds of constitutional virtues that are at the heart of his romantic account

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