Judges’ attitudes cannot be reliably inferred from opinion rhetoric

Evidence

Dworkin is inferring judges’ attitude from the rhetoric ofjudicial opinions, and this is perilous, because judges are not always candid and also because they often are not self-aware. Even if judges are consistently and deliberately deceptive, this would not impair the soundness of the pragmatic explanation of judicial behavior. Similarly, a lack of public consent would have nothing to do with the explanatory power of the pragmatic explanation. The issue of consent is in any event artificial, since judicial opinions are with rare exceptions written to be read by lawyers, not by lay people, and have in fact virtually no lay readership. — Richard A. Posner, What Has Pragmatism to Offer Law?, 120

Categorization

• XREF: Connects to the broader legal realism vs. formalist debate about whether judicial opinions reveal genuine reasoning or rationalize conclusions reached on other grounds. — connects to: Narrative credibility depends on skill, not factual accuracy. — Janet Burroway; Elizabeth Stuckey-French; Ned Stuckey-French, Writing Fiction, Tenth Edition: A Guide…, 56; Securely attached confidence in court texts evidences non-corporal child-raising. — , The Rod and the Child: A Global History…, 1135; Most American judges have been practicing pragmatists despite formalist discourse. — Richard A. Posner, What Has Pragmatism to Offer Law?, 118 (+7 more)

Broader Connections

• Opinion arguments rationalize decisions rather than explain how they are reached. #corroborates (0.80) — Philip Chase Bobbitt, Reflections Inspired by My Critics, 408
• Deceptive judicial rhetoric does not refute explanations of behavior #expands (0.70) — Richard A. Posner, What Has Pragmatism to Offer Law?, 120