Richard Posner

Richard Posner
Posner speaking at the Harvard Federalist Society (2009)
Judge of the United States Court of Appeals for the Seventh Circuit
Incumbent
Assumed office December 1, 1981
Nominated by	Ronald Reagan
Preceded by	Philip Tone
Chief Judge of the United States Court of Appeals for the Seventh Circuit
In office 1993–2000
Preceded by	William Bauer
Succeeded by	Joel Flaum
Personal details
Born	Richard Allen Posner (1939-01-11) January 11, 1939 New York City, New York, U.S.
Spouse	Charlene Posner
Alma mater	Yale University Harvard University

Richard Allen Posner (born January 11, 1939) is an American jurist, legal theorist, economist and is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School. He is an influential figure on the topic of law and economics.

He is the author of nearly 40 books on jurisprudence, economics, and several other topics, including Economic Analysis of Law, The Economics of Justice, The Problems of Jurisprudence, Sex and Reason, Law, Pragmatism and Democracy, and The Crisis of Capitalist Democracy. The Journal of Legal Studies has identified Posner as the most cited legal scholar of the 20th century.

Early life and education

Born in New York City, Posner graduated from Yale College (A.B., 1959, summa cum laude), majoring in English, and from Harvard Law School (LL.B., 1962, magna cum laude), where he was first in his class and president of the Harvard Law Review. After clerking for Justice William J. Brennan of the United States Supreme Court during the 1962–63 term, he served as Attorney-Advisor to Federal Trade Commissioner Philip Elman; he would later argue that the Federal Trade Commission ought to be abolished. He went on to work in the Office of the Solicitor General in the U.S. Department of Justice, under Solicitor General Thurgood Marshall.

Legal career

In 1968, Posner accepted a position teaching at Stanford Law School. In 1969, Posner moved to the faculty of the University of Chicago Law School, where he remains a Senior Lecturer and where his son Eric Posner is a Professor. He was a founding editor of the Journal of Legal Studies in 1972.

On October 27, 1981, Posner was nominated by President Ronald Reagan to a seat on the United States Court of Appeals for the Seventh Circuit vacated by Philip Willis Tone. Posner was confirmed by the United States Senate on November 24, 1981, and received his commission on December 1, 1981. He served as Chief Judge of that court from 1993 to 2000 but remained a part-time professor at the University of Chicago.

Posner is a pragmatist in philosophy and an economist in legal methodology. He has written many articles and books on a wide range of topics including law and economics, law and literature, the federal judiciary, moral theory, intellectual property, antitrust law, public intellectuals, and legal history. He is also well known for writing on a wide variety of current events including the 2000 presidential election recount controversy, Bill Clinton's affair with Monica Lewinsky and his resulting impeachment procedure, and the 2003 invasion of Iraq.

His analysis of the Lewinsky scandal cut across most party and ideological divisions. Posner's greatest influence is through his writings on law and economics, The New York Times called him "one of the most important antitrust scholars of the past half-century." In December 2004, Posner started a joint blog with Nobel Prize-winning economist Gary Becker. He also has a blog at The Atlantic, where he discusses the financial crisis.

Posner was mentioned in 2005 as a potential nominee to replace Sandra Day O'Connor because of his prominence as a scholar and an appellate judge. Robert S. Boynton has written in The Washington Post that he believes Posner will never sit on the Supreme Court because despite his "obvious brilliance," he would be criticized for his occasionally "outrageous conclusions," such as his contention "that the rule of law is an accidental and dispensable element of legal ideology," his argument that buying and selling children on the free market would lead to better outcomes than the present situation, government-regulated adoption, and his support for the legalization of marijuana and LSD.

Legal positions

Judge Posner making a dinner speech at Federal Trade Commission

In Posner's youth and in the 1960s as law clerk to William J. Brennan he was generally counted as a liberal. However, in reaction to some of the perceived excesses of the late 1960s, Posner developed a strongly conservative bent. He encountered Chicago School economists Aaron Director and George Stigler while a professor at Stanford. Posner summarized his views on law and economics in his 1973 book The Economic Analysis of Law.

Today, although generally viewed as to the right in academia, Posner's pragmatism, his qualified moral relativism and moral skepticism, and his affection for the thought of Friedrich Nietzsche set him apart from most American conservatives. As a judge, Posner's rulings have always placed him on the moderate-to-liberal wing of the Republican Party, where he has become more isolated over time. In July 2012 Posner stated that "I've become less conservative since the Republican Party started becoming goofy." Among Posner's judicial influences are the American jurists Oliver Wendell Holmes, Jr. and Learned Hand.

Abortion

Posner has written several opinions sympathetic to abortion rights, including a decision that held that "partial-birth abortion" was constitutionally protected in some circumstances.

Animal rights

Posner engaged in a debate on the ethics of using animals in research with the philosopher Peter Singer in 2001 at Slate magazine. He argues that animal rights conflict with the moral relevance of humanity and that empathy for pain and suffering of animals does not supersede advancing society. He further argues that he trusts his moral intuition until it is shown to be wrong and that his moral intuition says that "it is wrong to give as much weight to a dog's pain as to an infant's pain." He leaves open the possibility that facts on animal and human cognition can and may change his intuition in the future; he further states that people whose opinions were changed by consideration of the ethics presented in Singer's book Animal Liberation failed to see the "radicalism of the ethical vision that powers [their] view on animals, an ethical vision that finds greater value in a healthy pig than in a profoundly retarded child, that commands inflicting a lesser pain on a human being to avert a greater pain to a dog, and that, provided only that a chimpanzee has 1 percent of the mental ability of a normal human being, would require the sacrifice of the human being to save 101 chimpanzees."

Antitrust

Along with Robert Bork, Posner helped shape the antitrust policy changes of the 1970s through his idea that 1960s antitrust laws were in fact making prices higher for the consumer rather than lower, while he viewed lower prices as the essential end goal of any antitrust policy. Posner and Bork's theories on antitrust evolved into the prevailing view in academia and at the Justice Department of the George H. W. Bush Administration.

Bluebook

Posner is "one of the founding fathers of Bluebook abolitionism, having advocated it for almost twenty-five years, ever since his 1986 University of Chicago Law Review article on the subject." In a 2011 Yale Law Journal article, he wrote:

The Bluebook: A Uniform System of Citation exemplifies hypertrophy in the anthropological sense. It is a monstrous growth, remote from the functional need for legal citation forms, that serves obscure needs of the legal culture and its student subculture.

Breach of contract

Posner has written favorably of efficient breach of contracts. Breach often leads to a worse result for society: if a seller breaches a contract to deliver building materials, the buyer's workers might go idle while the buyer looks for a replacement. The lost production is a cost to the company and its workers and, as such, is a social cost. An efficient breach would be a situation in which the benefits are higher than the costs, because the seller is better off for breaching even after paying damages to the buyer (for instance, if some third party had a much greater need for the building materials and was willing to pay a price high enough to outprice both the original receiver and offset the realized costs of breach of contract).

Drugs

Posner opposes the US "War on Drugs" and called it "quixotic". In a 2003 CNBC interview he discussed the difficulty of enforcing criminal marijuana laws, and asserted that it is hard to justify the criminalization of marijuana when compared to other substances. In a talk at Elmhurst College in 2012, Posner said that "I don't think that we should have a fraction of the drug laws that we have. I think it's really absurd to be criminalizing possession or use or distribution of marijuana."

Newspapers

Posner supported the creation of a law barring hyperlinks or paraphrasing of copyrighted material as a means to prevent what he views as free riding on newspaper journalism. His co-blogger Gary Becker simultaneously posted a contrasting opinion that while the Internet might hurt newspapers, it will not harm the vitality of the press, but rather embolden it.

Patent & copyright law

Posner has expressed concerns, on the blog he contributes to with Gary Becker, that both patent and copyright protection, though particularly the former, may be excessive. He argues that the cost of inventing must be compared to the cost of copying in order to determine the optimal patent protection for an inventor. When patent protection is too strongly in favour of the inventor, market efficiency is decreased. He illustrates his argument by comparing the pharmaceutical industry (where the cost on invention is high) with the software industry (where the cost of invention is relatively low).

Police recording

As part of a three-judge panel on the 7th Circuit in Chicago, weighing a challenge to the Illinois Eavesdropping Act, which bars the secret recording of conversations without the consent of all the parties to the conversation, Posner was to deliver another memorable quote. At issue was the constitutionality of the Illinois wiretapping law, which makes it illegal to record someone without consent even when filming public acts like arrests in public. Posner interrupted the ACLU after just 14 words, stating, "Yeah, I know. But I’m not interested, really, in what you want to do with these recordings of peoples’ encounters with the police...." Posner continued: “Once all this stuff can be recorded, there’s going to be a lot more of this snooping around by reporters and bloggers.... I'm always suspicious when the civil liberties people start telling the police how to do their business.” The 7th Circuit upheld the challenge 2-1, striking down the Eavesdropping Act, but Posner wrote a dissenting opinion.

Prisoners

In a dissent from an earlier ruling by his protégé Frank Easterbrook, Posner wrote that Easterbrook's decision that female guards could watch male prisoners while in the shower or bathroom must stem from a belief that prisoners are "members of a different species, indeed as a type of vermin, devoid of human dignity and entitled to no respect.... I do not myself consider the 1.5 million inmates of American prisons and jails in that light."

Privacy

Posner famously opposed the right to privacy in 1981, arguing that the kinds of interests protected under privacy are not distinctive. He contended that privacy is protected in ways that are economically inefficient.

Torture

When reviewing Alan Dershowitz's book, Why Terrorism Works: Understanding the Threat, Responding to the Challenge, Posner wrote in the September 2002 The New Republic, "If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used—and will be used—to obtain the information.... No one who doubts that this is the case should be in a position of responsibility."

Judicial career

Posner is one of the most prolific legal writers, through both the number and topical breadth of his opinions, to say nothing of his scholarly and popular writings. Unlike many other judges, he writes all his own opinions. Nobel Laureate economist Robert Solow says that Posner "is an apparently inexhaustible writer on... nearly everything. To call him a polymath would be a gross understatement.... Judge Posner evidently writes the way other men breathe."

Aside from the sheer volume of his output, Posner's opinions enjoy great respect from other judges, based on citations, and within the legal academy, where his opinions are taught in many foundational law courses. For example, his opinion in Indiana Harbor Belt Railroad Co. v. American Cyanamid Co., a staple of first year Torts courses taught in American law schools, where the case is used to address the question of when it is better to use negligence liability or strict liability.

In his decision in the 1997 case State Oil Co. v. Khan, Posner wrote that a ruling 1968 antitrust precedent set by the Supreme Court was "moth-eaten", "wobbly", and "unsound". Nevertheless, he abided by the previous decision with his ruling. The Supreme Court granted certiorari and overturned the 1968 ruling unanimously; Sandra Day O'Connor wrote the opinion and spoke positively of both Posner's criticism and his decision to abide by the ruling until the Court decided to change it.

In 1999, Posner was welcomed as a private mediator among the parties involved in the Microsoft antitrust case.

Awards and honors

A 2004 poll by Legal Affairs magazine named Posner as one of the top twenty legal thinkers in the U.S.

In 2008, the University of Chicago Law Review published a commemorative issue: "Commemorating Twenty-five Years of Judge Richard A. Posner." A website, Project Posner, details all of Posner's many legal opinions. It was begun by Posner's former clerk, Tim Wu, who calls Posner "probably America's greatest living jurist." Another of Posner's former legal clerks, Lawrence Lessig, wrote, "There isn't a federal judge I respect more, both as a judge and person." The former dean of Yale Law School, Anthony T. Kronman, said that Posner was "one of the most rational human beings" he had ever met.

Bibliography

The following is a selection of Posner's writings.

Selected books

• 1981 The Economics of Justice, ISBN 978-0-674-23526-7
• 1988 Law and Literature: A Misunderstood Relation, ISBN 978-0-674-51468-3
• 1990 The Problems of Jurisprudence, ISBN 978-0-674-70876-1
• 1990 Cardozo: A Study in Reputation, ISBN 978-0-226-67556-5
• 1992 Sex and Reason, ISBN 978-0-674-80280-3
• 1995 Overcoming Law, ISBN 978-0-674-64926-2, Among the topics is a critique of Robert Bork's constitutional theories, review of books about the legal system in the Third Reich, and a discussion of the legal culture reflected in the works of Tom Wolfe and E.M. Forster.
• 1995 Aging and Old Age, ISBN 978-0-226-67568-8
• 1996 The Federal Courts: Challenge and Reform (2d ed.), ISBN 978-0-674-29627-5
• 1996 Law and Legal Theory in England and America, ISBN 978-0-19-826471-2
• 1998 Law and Literature (revised and enlarged ed.), ISBN 978-0-674-51471-3
• 1999 The Problematics of Moral and Legal Theory, ISBN 978-0-674-00799-4
• 2001 Frontiers of Legal Theory, ISBN 978-0-674-01360-5
• 2001 Antitrust Law, 2nd ed., ISBN 978-0-226-67576-3
• 2001 Breaking the Deadlock: The 2000 Presidential Election and the Courts, ISBN 978-0-691-09073-3
• 2002 Public Intellectuals: A Study of Decline, ISBN 978-0-674-00633-1
• 2003 Law, Pragmatism and Democracy, ISBN 978-0-674-01081-9
• 2003 The Economic Structure of Intellectual Property Law (Harvard Univ. Press) (with William Landes), ISBN 978-0-674-01204-2
• 2004 Catastrophe: Risk and Response, ISBN 978-0-19-530647-7
• 2005 Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11, ISBN 978-0-7425-4947-0
• 2006 Uncertain Shield: The U.S. Intelligence System in the Throes of Reform, ISBN 978-0-7425-5127-5
• 2006 Not a Suicide Pact: The Constitution in a Time of National Emergency, ISBN 978-0-19-530427-5
• 2007 The Little Book of Plagiarism, ISBN 978-0-375-42475-5
• 2007 Economic Analysis of Law, 7th ed., ISBN 978-0-7355-6354-4
• 2007 Countering Terrorism: Blurred Focus, Halting Steps, ISBN 978-0-7425-5883-0
• 2008 How Judges Think, ISBN 978-0-674-02820-3
• 2009 Law and Literature, 3rd. ed., ISBN 978-0-674-03246-0
• 2009 A Failure of Capitalism: The Crisis of '08 and the Descent into Depression, ISBN 978-0-674-03514-0
• 2010 The Crisis of Capitalist Democracy, ISBN 978-0-674-00574-2
• 2010 Economic Analysis of Law, 8th ed., ISBN 978-0-7355-9442-5

Selected articles

• The Federal Trade Commission, 37 U. Chi. L. Rev. 47 (1969)
• A Theory of Negligence, 1 J. Legal Stud. 29 (1972)
• The Economics of the Baby Shortage: A Modest Proposal, 7 J. Legal Stud. 323 (with Elisabeth M. Landes) (1978)
• Statutory Interpretation – In the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800 (1983)
• The Problematics of Moral and Legal Theory, 111 Harv. L. Rev. 1637 (1998)
• Pragmatism Versus Purposivism in First Amendment Analysis, 54 Stan. L. Rev. 737 (2002)
• Transaction Costs and Antitrust Concerns in the Licensing of Intellectual Property, 4 J. Marshall Rev. Intell. Prop. L. 325 (2005)
• Foreword: A Political Court (The Supreme Court, 2004 Term), 119 Harv. L. Rev. 31 (2005)

See also

• George W. Bush Supreme Court candidates
• Gary Becker
• American philosophy
• In re Aimster Copyright Litigation

External links

• Richard Posner at the Biographical Directory of Federal Judges, a publication of the Federal Judicial Center.
• Project Posner
• Richard A. Posner at the University of Chicago Law School
• Richard A. Posner at the University of Chicago
• The Becker-Posner Blog
• Posner's blog at The Atlantic
• Profile and Papers at Research Papers in Economics/RePEc
• Template:Worldcat id
• Richard Posner at IMDb
• Richard Posner at IMDb
• Appearances on C-SPAN
  • Booknotes interview with Posner on Public Intellectuals: A Study of Decline, June 2, 2002.
• Richard Posner on Charlie Rose
• Richard Posner collected news and commentary at The New York Times
• Richard A. Posner at the complete review
  • Complete-Review.com's "Reactions to Richard Posner's Public Intellectuals"
• "The Bench Burner", interview/article in The New Yorker, Dec. 10, 2001
• Lawrence A. Cunningham, Cardozo and Posner: A Study in Contracts, 36 William & Mary Law Review 1379 (1995)
• Soziale Innovation, Eine Serie in brand eins Folge 8: Wohlstandsmaximierung Article in the German economy magazine brand eins 8/2006
• Boldtype.com interview with Richard Posner on his new book, Little Book of Plagiarism
• "Secret trials for terrorists, says US judge", The Australian, June 29, 2007.
• Audio interview with Posner at National Review Online