The judiciary are different than you and me, not just because they have life tenure, but because they spend years being petitioned by real people. A judge therefore does not face problems as a logistician or an academic does but instead faces a demand to do something for someone, based on events preceding. The resulting posture of decision tends to bring something out, something Justice Oliver Wendell Holmes once described as “the secret root from which the law draws all the juices of life.”
We can learn more about this “secret root” of the common law decision-making from Richard Posner’s career, for he made his calling the addressing of hard problems from both an academic and judicial posture. When it came to copyright law (the subject of this Essay), he was a leading advocate of an economic approach to the law and even specified what he thought with some doctrinal specificity. Hence the natural experiment: What would happen when Posner came to face decades of actual cases? What might be the effect, if any, of judging?
Intellectual Property Law | Judges | Law
On Posner on Copyright,
U. Chi. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/2985