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Copyright (c) 2013 Duquesne University
Duquesne Law Review

Article: Judicial Opinions and Appellate Advocacy in Federal Courts - One Judge's Views

Winter, 2013

Duquesne Law Review

51 Duq. L. Rev. 3

Author

Richard A. Posner*

Excerpt



I. Decision Making

Opinion writing and advocacy obviously cannot be divorced from decision making. How judges make up their minds about the outcome of a case is bound to influence opinion writing and it should also influence how lawyers argue before judges.

Unfortunately judges tend not to be candid about how they decide cases. They like to say they just apply the law--given to them, not created by them--to the facts. They do this to deflect criticism and hostility on the part of losing parties and others who will be displeased with the result, and to reassure the other branches of government that they are not competing with them--that they are not legislating and thus encroaching on legislators' prerogatives, or usurping executive-branch powers. They want to be thought of as technicians, as experts, rather than as politicians in robes--more precisely, rather than as full-time judges compelled by circumstances sometimes to legislate from the bench.

And most of the time, judges, such as federal court of appeals judges, who have a mandatory jurisdiction--who cannot pick and choose the cases they hear, as the U.S. Supreme Court can and does--really are engaged in objective, non-ideological decision making. Most appeals to federal courts of appeals really can be decided satisfactorily by straightforward application of known and definite law to the facts of the case, and most judges take seriously their role as modest law appliers--also it takes less time and effort to dispose of a case by application of known law to facts ...
 
 
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