Eric Segall had the cool honor of shadowing Judge Posner for a week, and offers a detailed account of his experiences. Of note, he discusses Judge Posner’s propensity to looking outside the record, and even conducting a judicial fashion show.
During meetings with his law clerks on Tuesday, prior to nine oral arguments over two days, Judge Posner demonstrated more concern about facts, evidence, and context than cold legal rules. He wanted to know what was in the record and what was not in the record. Both the judge and his clerks often search the internet for information that may shed light on the problems they have to resolve.
Some lawyers and judges criticize Posner for going outside the four corners of the appellate case record. He once had his clerks perform an actual experiment in a case involving how fast special work clothes could be taken off and on by timing how fast they could perform that feat. This out-of-court search for the facts led his friend Judge Wood to file a strong dissent criticizing Posner’s experiment, but he believes that prior judgments and untested intuitions play a prominent role in how judges decide cases, so why not bring those assumptions out into the open and test intuitions against actual data and experience? Posner simply refuses to be limited to applying sterile legal analysis to real world questions. Unlike many other judges, he also wants to know as much as possible about the actual likely consequences of his decisions.
I think the “lawyers” Eric mentioned includes me.