Article: Judicial Opinions and Appellate Advocacy in Federal Courts - One Judge's Views Skip over navigation
LexisNexis® Browse Law Reviews and Treatises
Skip over navigation
Sign in with your® ID to access the full text of this article.
Order the full text of this article if you do not have a® ID.
US $22.00 (+ tax)

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


Richard A. Posner*


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 ...
If you are interested in obtaining a® ID and Password, please contact us at 1-(800)-227-4908 or visit us at
Search Documents
eg., Environmental Insurance Coverage Under the Comprehensive General Liability Policy

Lexis® Web - The only search engine that delivers free web content specifically from legal sites validated by LexisNexis® attorney editors and includes tools for faster research and more relevant results.

LexisNexis Store
Research Now - Go to
Connect the Dots - Free 1 hour webcast
Share. Network. Discover. - Go to LexisNexis Communities