Richard Posner
Encyclopedia
Richard Allen Posner is an American jurist
, legal theorist, and economist
who 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 in the law and economics
school of thought.
Posner has been called "the world’s most distinguished legal scholar." 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
.
, 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
.
. 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, while remaining a part-time professor at the University of Chicago
.
Posner is a pragmatist
in philosophy
, a classical liberal in politics
, and an economist
in legal methodology. He is a prolific author of 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, President 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," 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
.
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 considered a figure of the right
, 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. Among his other influences are the American jurists Oliver Wendell Holmes, Jr.
and Learned Hand
.
Abortion
He has written several opinions sympathetic to abortion rights, including a decision holding "partial-birth abortion" 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 conflicts 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 "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.
The Bluebook
Posner is "one of the founding fathers of Bluebook
abolitionism, having advocated it for almost twenty-five years, ever since his 1986 U of Chicago Law Review
article on the subject." In a 2011 Yale Law Journal
article, he wrote that:
Breach of contract
He 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 both out-price the original receiver and offset the realized costs of breach of contract).
Drugs
He has characterized the U.S.'s "War on Drugs
" as "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
compared to other substances.
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.
Video Recording Police
As a judge on the 7th Circuit in Chicago, weighing a challenge to the state’s Eavesdropping Act, which bars the secret recording of conversations without the consent of all the parties to the conversation. At issue was the constitutionality of the Illinois wiretapping law, which makes it illegal to record someone without his consent even when filming public acts like arrests in public. Posner was one of three judges and 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.”
Prisoners
In a dissent from an earlier ruling by his protege 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
He famously opposed the right of 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 New Republic
, September 2002 that "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."
economist Robert Solow lavished praise on Posner's fecundity, observing: "he [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
.
In 2008, the University of Chicago Law Review
published a commemorative issue titled “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.
|-
Jurist
A jurist or jurisconsult is a professional who studies, develops, applies, or otherwise deals with the law. The term is widely used in American English, but in the United Kingdom and many Commonwealth countries it has only historical and specialist usage...
, legal theorist, and economist
Economist
An economist is a professional in the social science discipline of economics. The individual may also study, develop, and apply theories and concepts from economics and write about economic policy...
who is currently a judge on the United States Court of Appeals for the Seventh Circuit
United States Court of Appeals for the Seventh Circuit
The United States Court of Appeals for the Seventh Circuit is a federal court with appellate jurisdiction over the courts in the following districts:* Central District of Illinois* Northern District of Illinois...
in Chicago
Chicago
Chicago is the largest city in the US state of Illinois. With nearly 2.7 million residents, it is the most populous city in the Midwestern United States and the third most populous in the US, after New York City and Los Angeles...
and a Senior Lecturer at the University of Chicago Law School
University of Chicago Law School
The University of Chicago Law School was founded in 1902 as the graduate school of law at the University of Chicago and is among the most prestigious and selective law schools in the world. The U.S. News & World Report currently ranks it fifth among U.S...
. He is an influential figure in the law and economics
Law and economics
The economic analysis of law is an analysis of law applying methods of economics. Economic concepts are used to explain the effects of laws, to assess which legal rules are economically efficient, and to predict which legal rules will be promulgated.-Relationship to other disciplines and...
school of thought.
Posner has been called "the world’s most distinguished legal scholar." 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
The Journal of Legal Studies
The Journal of Legal Studies is a law journal published by the University of Chicago Press focusing on interdisciplinary academic research in law and legal institutions....
has identified Posner as the most cited
Citation impact
Citation is the process of acknowledging or citing the author, year, title, and locus of publication of a source used in a published work. Such citations can be counted as measures of the usage and impact of the cited work. This is called citation analysis or bibliometrics...
legal scholar of the 20th century
20th century
Many people define the 20th century as running from January 1, 1901 to December 31, 2000, others would rather define it as beginning on January 1, 1900....
.
Early life and education
Born in New York CityNew York City
New York is the most populous city in the United States and the center of the New York Metropolitan Area, one of the most populous metropolitan areas in the world. New York exerts a significant impact upon global commerce, finance, media, art, fashion, research, technology, education, and...
, Posner graduated from Yale College
Yale College
Yale College was the official name of Yale University from 1718 to 1887. The name now refers to the undergraduate part of the university. Each undergraduate student is assigned to one of 12 residential colleges.-Residential colleges:...
(A.B.
Bachelor of Arts
A Bachelor of Arts , from the Latin artium baccalaureus, is a bachelor's degree awarded for an undergraduate course or program in either the liberal arts, the sciences, or both...
, 1959, summa cum laude), majoring
Academic major
In the United States and Canada, an academic major or major concentration is the academic discipline to which an undergraduate student formally commits....
in English
English studies
English studies is an academic discipline that includes the study of literatures written in the English language , English linguistics English studies is an academic discipline that includes the study of literatures written in the English language (including literatures from the U.K., U.S.,...
, and from Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
(LL.B.
Bachelor of Laws
The Bachelor of Laws is an undergraduate, or bachelor, degree in law originating in England and offered in most common law countries as the primary law degree...
, 1962, magna cum laude), where he was first in his class and president of the Harvard Law Review
Harvard Law Review
The Harvard Law Review is a journal of legal scholarship published by an independent student group at Harvard Law School.-Overview:According to the 2008 Journal Citation Reports, the Review is the most cited law review and has the second-highest impact factor in the category "law" after the...
. After clerking
Law clerk
A law clerk or a judicial clerk is a person who provides assistance to a judge in researching issues before the court and in writing opinions. Law clerks are not court clerks or courtroom deputies, who are administrative staff for the court. Most law clerks are recent law school graduates who...
for Justice William J. Brennan
William J. Brennan, Jr.
William Joseph Brennan, Jr. was an American jurist who served as an Associate Justice of the United States Supreme Court from 1956 to 1990...
of the United States Supreme Court during the 1962-63 term, he served as Attorney-Advisor to Federal Trade Commissioner Philip Elman
Philip Elman
Philip Elman was an American lawyer at the United States Department of Justice and former member of the Federal Trade Commission. He is best known for writing the government's brief in Brown v...
; he would later argue that the Federal Trade Commission
Federal Trade Commission
The Federal Trade Commission is an independent agency of the United States government, established in 1914 by the Federal Trade Commission Act...
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
United States Solicitor General
The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States. The current Solicitor General, Donald B. Verrilli, Jr. was confirmed by the United States Senate on June 6, 2011 and sworn in on June...
Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
.
Legal career
In 1968, Posner accepted a position teaching at Stanford Law SchoolStanford Law School
Stanford Law School is a graduate school at Stanford University located in the area known as the Silicon Valley, near Palo Alto, California in the United States. The Law School was established in 1893 when former President Benjamin Harrison joined the faculty as the first professor of law...
. In 1969, Posner moved to the faculty of the University of Chicago Law School
University of Chicago Law School
The University of Chicago Law School was founded in 1902 as the graduate school of law at the University of Chicago and is among the most prestigious and selective law schools in the world. The U.S. News & World Report currently ranks it fifth among U.S...
, where he remains a Senior Lecturer and where his son Eric Posner
Eric Posner
Eric Andrew Posner is Kirkland and Ellis Professor of Law at the University of Chicago Law School. He is the son of the prominent federal appellate judge Richard Posner.-Education and clerkship:...
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
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
to a seat on the United States Court of Appeals for the Seventh Circuit
United States Court of Appeals for the Seventh Circuit
The United States Court of Appeals for the Seventh Circuit is a federal court with appellate jurisdiction over the courts in the following districts:* Central District of Illinois* Northern District of Illinois...
vacated by Philip Willis Tone
Philip Willis Tone
Philip Willis Tone was a United States federal judge.Born in Chicago, Illinois, Tone received an A.B. from State University of Iowa in 1943 and was a First Lieutenant in the United States Army during World War II, from 1943 to 1946. He received a J.D. from State University of Iowa College of Law...
. Posner was confirmed by the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
on November 24, 1981, and received his commission on December 1, 1981. He served as Chief Judge
Chief judge
Chief Judge is a title that can refer to the highest-ranking judge of a court that has more than one judge. The meaning and usage of the term vary from one court system to another...
of that court from 1993 to 2000, while remaining a part-time professor at the University of Chicago
University of Chicago
The University of Chicago is a private research university in Chicago, Illinois, USA. It was founded by the American Baptist Education Society with a donation from oil magnate and philanthropist John D. Rockefeller and incorporated in 1890...
.
Posner is a pragmatist
Pragmatism
Pragmatism is a philosophical tradition centered on the linking of practice and theory. It describes a process where theory is extracted from practice, and applied back to practice to form what is called intelligent practice...
in philosophy
Philosophy
Philosophy is the study of general and fundamental problems, such as those connected with existence, knowledge, values, reason, mind, and language. Philosophy is distinguished from other ways of addressing such problems by its critical, generally systematic approach and its reliance on rational...
, a classical liberal in politics
Politics
Politics is a process by which groups of people make collective decisions. The term is generally applied to the art or science of running governmental or state affairs, including behavior within civil governments, but also applies to institutions, fields, and special interest groups such as the...
, and an economist
Economist
An economist is a professional in the social science discipline of economics. The individual may also study, develop, and apply theories and concepts from economics and write about economic policy...
in legal methodology. He is a prolific author of articles and books on a wide range of topics including law and economics, law and literature, the federal judiciary, moral theory, intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
, antitrust law, public intellectuals, and legal history
Legal history
Legal history or the history of law is the study of how law has evolved and why it changed. Legal history is closely connected to the development of civilizations and is set in the wider context of social history...
. He is also well known for writing on a wide variety of current events including the 2000 presidential election recount controversy, President Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
's affair with Monica Lewinsky
Monica Lewinsky
Monica Samille Lewinsky is an American woman with whom United States President Bill Clinton admitted to having had an "improper relationship" while she worked at the White House in 1995 and 1996...
and his resulting impeachment procedure, and the 2003 invasion of Iraq
2003 invasion of Iraq
The 2003 invasion of Iraq , was the start of the conflict known as the Iraq War, or Operation Iraqi Freedom, in which a combined force of troops from the United States, the United Kingdom, Australia and Poland invaded Iraq and toppled the regime of Saddam Hussein in 21 days of major combat operations...
. His analysis of the Lewinsky scandal
Lewinsky scandal
The Lewinsky scandal was a political sex scandal emerging in 1998 from a sexual relationship between United States President Bill Clinton and a 25-year-old White House intern, Monica Lewinsky. The news of this extra-marital affair and the resulting investigation eventually led to the impeachment of...
cut across most party and ideological divisions. Posner's greatest influence is through his writings on law and economics—The New York Times
The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...
called him "one of the most important antitrust
Antitrust
The United States antitrust law is a body of laws that prohibits anti-competitive behavior and unfair business practices. Antitrust laws are intended to encourage competition in the marketplace. These competition laws make illegal certain practices deemed to hurt businesses or consumers or both,...
scholars of the past half-century." In December 2004, Posner started a joint blog
Blog
A blog is a type of website or part of a website supposed to be updated with new content from time to time. Blogs are usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video. Entries are commonly displayed in...
with Nobel Prize
Nobel Prize
The Nobel Prizes are annual international awards bestowed by Scandinavian committees in recognition of cultural and scientific advances. The will of the Swedish chemist Alfred Nobel, the inventor of dynamite, established the prizes in 1895...
-winning economist Gary Becker
Gary Becker
Gary Stanley Becker is an American economist. He is a professor of economics, sociology at the University of Chicago and a professor at the Booth School of Business. He was awarded the Nobel Memorial Prize in Economic Sciences in 1992, and received the United States' Presidential Medal of Freedom...
. He also has a blog at The Atlantic, where he discusses the financial crisis.
Posner was mentioned in 2005 as a potential nominee
Bush Supreme Court candidates
Speculation abounded over potential nominations to the Supreme Court of the United States by President George W. Bush since before his presidency....
to replace Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
because of his prominence as a scholar and an appellate judge. Robert S. Boynton has written in The Washington Post
The Washington Post
The Washington Post is Washington, D.C.'s largest newspaper and its oldest still-existing paper, founded in 1877. Located in the capital of the United States, The Post has a particular emphasis on national politics. D.C., Maryland, and Virginia editions are printed for daily circulation...
that he believes Posner will never sit on the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
because, despite his "obvious brilliance," his occasionally "outrageous conclusions," such as his contention "that the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
is an accidental and dispensable element of legal ideology"; his argument that buying and selling children on the free market
Free market
A free market is a competitive market where prices are determined by supply and demand. However, the term is also commonly used for markets in which economic intervention and regulation by the state is limited to tax collection, and enforcement of private ownership and contracts...
would lead to better outcomes than the present situation, government-regulated adoption
Adoption
Adoption is a process whereby a person assumes the parenting for another and, in so doing, permanently transfers all rights and responsibilities from the original parent or parents...
; and his support for the legalization of marijuana
Cannabis (drug)
Cannabis, also known as marijuana among many other names, refers to any number of preparations of the Cannabis plant intended for use as a psychoactive drug or for medicinal purposes. The English term marijuana comes from the Mexican Spanish word marihuana...
and LSD
LSD
Lysergic acid diethylamide, abbreviated LSD or LSD-25, also known as lysergide and colloquially as acid, is a semisynthetic psychedelic drug of the ergoline family, well known for its psychological effects which can include altered thinking processes, closed and open eye visuals, synaesthesia, an...
.
Legal positions
Liberalism
Liberalism is the belief in the importance of liberty and equal rights. Liberals espouse a wide array of views depending on their understanding of these principles, but generally, liberals support ideas such as constitutionalism, liberal democracy, free and fair elections, human rights,...
. 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
Aaron Director
Aaron Director , a celebrated professor at the University of Chicago Law School, played a central role in the development of the Chicago school of economics...
and George Stigler
George Stigler
George Joseph Stigler was a U.S. economist. He won the Nobel Memorial Prize in Economic Sciences in 1982, and was a key leader of the Chicago School of Economics, along with his close friend Milton Friedman....
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 considered a figure of the right
Right-wing politics
In politics, Right, right-wing and rightist generally refer to support for a hierarchical society justified on the basis of an appeal to natural law or tradition. To varying degrees, the Right rejects the egalitarian objectives of left-wing politics, claiming that the imposition of equality is...
, Posner's pragmatism
Pragmatism
Pragmatism is a philosophical tradition centered on the linking of practice and theory. It describes a process where theory is extracted from practice, and applied back to practice to form what is called intelligent practice...
, his qualified moral relativism
Moral relativism
Moral relativism may be any of several descriptive, meta-ethical, or normative positions. Each of them is concerned with the differences in moral judgments across different people and cultures:...
and moral skepticism
Moral skepticism
"Moral skepticism" denotes a class of metaethical theories all members of which entail that no one has any moral knowledge. Many moral skeptics also make the stronger, modal, claim that moral knowledge is impossible...
, and his affection for the thought of Friedrich Nietzsche
Friedrich Nietzsche
Friedrich Wilhelm Nietzsche was a 19th-century German philosopher, poet, composer and classical philologist...
set him apart from most American conservatives. Among his other influences are the American jurists Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
and Learned Hand
Learned Hand
Billings Learned Hand was a United States judge and judicial philosopher. He served on the United States District Court for the Southern District of New York and later the United States Court of Appeals for the Second Circuit...
.
Abortion
He has written several opinions sympathetic to abortion rights, including a decision holding "partial-birth abortion" constitutionally protected in some circumstances.
Animal rights
Posner engaged in a debate on the ethics
Ethics
Ethics, also known as moral philosophy, is a branch of philosophy that addresses questions about morality—that is, concepts such as good and evil, right and wrong, virtue and vice, justice and crime, etc.Major branches of ethics include:...
of using animals in research
Animal testing
Animal testing, also known as animal experimentation, animal research, and in vivo testing, is the use of non-human animals in experiments. Worldwide it is estimated that the number of vertebrate animals—from zebrafish to non-human primates—ranges from the tens of millions to more than 100 million...
with the philosopher Peter Singer
Peter Singer
Peter Albert David Singer is an Australian philosopher who is the Ira W. DeCamp Professor of Bioethics at Princeton University and Laureate Professor at the Centre for Applied Philosophy and Public Ethics at the University of Melbourne...
in 2001 at Slate magazine. He argues that animal rights conflicts 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 "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
Cognition
In science, cognition refers to mental processes. These processes include attention, remembering, producing and understanding language, solving problems, and making decisions. Cognition is studied in various disciplines such as psychology, philosophy, linguistics, and computer science...
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
Animal Liberation (book)
Animal Liberation is a book by Australian philosopher Peter Singer, published in 1975.The book is widely considered within the animal liberation movement to be the founding philosophical statement of its ideas...
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
Robert Bork
Robert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...
, 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.
The Bluebook
Posner is "one of the founding fathers of Bluebook
Bluebook
The Bluebook: A Uniform System of Citation, a style guide, prescribes the most widely used legal citation system in the United States. The Bluebook is compiled by the Harvard Law Review Association, the Columbia Law Review, the University of Pennsylvania Law Review, and the Yale Law Journal....
abolitionism, having advocated it for almost twenty-five years, ever since his 1986 U of Chicago Law Review
University of Chicago Law Review
The University of Chicago Law Review is a law journal published by the University of Chicago Law School, and was established in 1933. From 1942 through 1945 the review was published by the faculty, due to World War II. Prominent former student members have included Judge Abner J...
article on the subject." In a 2011 Yale Law Journal
Yale Law Journal
The Yale Law Journal is a student-run law review affiliated with the Yale Law School. Published continuously since 1891, it is the most widely known of the eight law reviews published by students at Yale Law School...
article, he wrote that:
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
He has written favorably of efficient breach of contracts. Breach
Breach of contract
Breach of contract is a legal cause of action in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party's performance....
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
Cover (law)
Cover is a term used in the law of contracts to describe a remedy available to a merchant buyer who has received an anticipatory repudiation of a contract for the receipt of goods. Under the Uniform Commercial Code, the buyer is permitted to find another source of the same type of goods...
. The lost production is a cost to the company and its workers and, as such, is a social cost
Social cost
Social cost, in economics, is generally defined in opposition to "private cost". In economics, theorists model individual decision-making as measurement of costs and benefits...
. 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
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory 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 both out-price the original receiver and offset the realized costs of breach of contract).
Drugs
He has characterized the U.S.'s "War on Drugs
War on Drugs
The War on Drugs is a campaign of prohibition and foreign military aid and military intervention being undertaken by the United States government, with the assistance of participating countries, intended to both define and reduce the illegal drug trade...
" as "quixotic
Quixotism
Quixotism is impracticality in pursuit of ideals, especially those ideals manifested by rash, lofty and romantic ideas or extravagantly chivalrous action. It also serves to describe an idealism without regard to practicality...
". In a 2003 CNBC
CNBC
CNBC is a satellite and cable television business news channel in the U.S., owned and operated by NBCUniversal. The network and its international spinoffs cover business headlines and provide live coverage of financial markets. The combined reach of CNBC and its siblings is 390 million viewers...
interview, he discussed the difficulty of enforcing criminal marijuana laws and asserted that it is hard to justify the criminalization of marijuana
Cannabis (drug)
Cannabis, also known as marijuana among many other names, refers to any number of preparations of the Cannabis plant intended for use as a psychoactive drug or for medicinal purposes. The English term marijuana comes from the Mexican Spanish word marihuana...
compared to other substances.
Newspapers
Posner supported the creation of a law barring hyperlinks or paraphrasing of copyrighted material
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
as a means to prevent what he views as free riding on newspaper journalism. His co-blogger Gary Becker
Gary Becker
Gary Stanley Becker is an American economist. He is a professor of economics, sociology at the University of Chicago and a professor at the Booth School of Business. He was awarded the Nobel Memorial Prize in Economic Sciences in 1992, and received the United States' Presidential Medal of Freedom...
simultaneously posted a contrasting opinion that while the Internet
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
might hurt newspapers, it will not harm the vitality of the press, but rather embolden it.
Video Recording Police
As a judge on the 7th Circuit in Chicago, weighing a challenge to the state’s Eavesdropping Act, which bars the secret recording of conversations without the consent of all the parties to the conversation. At issue was the constitutionality of the Illinois wiretapping law, which makes it illegal to record someone without his consent even when filming public acts like arrests in public. Posner was one of three judges and 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.”
Prisoners
In a dissent from an earlier ruling by his protege 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
Vermin
Vermin is a term applied to various animal species regarded by some as pests or nuisances and especially to those associated with the carrying of disease. Since the term is defined in relation to human activities, which species are included will vary from area to area and even person to person...
, 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
He famously opposed the right of 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
Alan Dershowitz
Alan Morton Dershowitz is an American lawyer, jurist, and political commentator. He has spent most of his career at Harvard Law School where in 1967, at the age of 28, he became the youngest full professor of law in its history...
's book, "Why Terrorism Works: Understanding the Threat, Responding to the Challenge", Posner wrote in The New Republic
The New Republic
The magazine has also published two articles concerning income inequality, largely criticizing conservative economists for their attempts to deny the existence or negative effect increasing income inequality is having on the United States...
, September 2002 that "If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb
Ticking time bomb scenario
The ticking time bomb scenario is a thought experiment that has been used in the ethics debate over whether torture can ever be justified.Simply stated, the consequentialist argument is that nations, even those such as the United States that legally disallow torture, can justify its use if they...
in Times Square
Times Square
Times Square is a major commercial intersection in the borough of Manhattan in New York City, at the junction of Broadway and Seventh Avenue and stretching from West 42nd to West 47th Streets...
, 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 judges, he writes all his own opinions. Nobel LaureateNobel Memorial Prize in Economic Sciences
The Nobel Memorial Prize in Economic Sciences, commonly referred to as the Nobel Prize in Economics, but officially the Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel , is an award for outstanding contributions to the field of economics, generally regarded as one of the...
economist Robert Solow lavished praise on Posner's fecundity, observing: "he [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.
Indiana Harbor Belt Railroad Co. v. American Cyanamid Co.
Indiana Harbor Belt Railroad Co. v. American Cyanamid Co., 916 F.2d 1174 is a decision of the United States Court of Appeals for the Seventh Circuit authored by Judge Richard Posner...
, a staple of first year Torts courses taught in American law schools
Law school in the United States
In the United States, a law school is an institution where students obtain a professional education in law after first obtaining an undergraduate degree.Law schools in the U.S...
, where the case is used to address the question of when it is better to use negligence
Negligence
Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...
liability or strict liability
Strict liability
In law, strict liability is a standard for liability which may exist in either a criminal or civil context. A rule specifying strict liability makes a person legally responsible for the damage and loss caused by his or her acts and omissions regardless of culpability...
.
In his decision in the 1997 case State Oil Co. v. Khan
State Oil Co. v. Khan
State Oil Co. v. Khan, 522 U.S. 3 , was a decision by the United States Supreme Court, which “does not hold that all vertical maximum price fixing is per se lawful, but simply that it should be evaluated under the rule of reason, which can effectively identify those situations in which it amounts...
, Posner wrote that a ruling 1968 antitrust precedent set by the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
was "moth-eaten", "wobbly", and "unsound". Nevertheless, he abided by the previous decision with his ruling. The Supreme Court granted certiorari
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
and overturned the 1968 ruling unanimously; Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
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
Mediation
Mediation, as used in law, is a form of alternative dispute resolution , a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement...
among the parties involved in the Microsoft antitrust case
United States v. Microsoft
United States v. Microsoft was a set of civil actions filed against Microsoft Corporation pursuant to the Sherman Antitrust Act of 1890 Section 1 and 2 on May 8, 1998 by the United States Department of Justice and 20 U.S. states. Joel I. Klein was the lead prosecutor...
.
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
University of Chicago Law Review
The University of Chicago Law Review is a law journal published by the University of Chicago Law School, and was established in 1933. From 1942 through 1945 the review was published by the faculty, due to World War II. Prominent former student members have included Judge Abner J...
published a commemorative issue titled “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
Tim Wu
Tim Wu is a professor at Columbia Law School, the former chair of media reform group Free Press, and a writer for Slate Magazine. He is also a former Bernard L. Schwartz and Future Tense fellow at The New America Foundation...
, who calls Posner "probably America's greatest living jurist." Another of Posner's former legal clerks, Lawrence Lessig
Lawrence Lessig
Lawrence "Larry" Lessig is an American academic and political activist. He is best known as a proponent of reduced legal restrictions on copyright, trademark, and radio frequency spectrum, particularly in technology applications, and he has called for state-based activism to promote substantive...
, 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
Anthony T. Kronman
Anthony Townsend Kronman is a Sterling Professor at Yale Law School specialized in contracts, bankruptcy, jurisprudence, social theory, and professional responsibility. He was the Dean of Yale Law School from 1994 to 2004.-Biography:...
, said that Posner was "one of the most rational human beings" he had ever met.
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 BorkRobert BorkRobert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...
'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 WolfeTom WolfeThomas Kennerly "Tom" Wolfe, Jr. is a best-selling American author and journalist. He is one of the founders of the New Journalism movement of the 1960s and 1970s.-Early life and education:...
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 LiteratureLaw and literatureThe law and literature movement focuses on the interdisciplinary connection between law and literature. This field has roots in two major developments in the intellectual history of law -- first, the growing doubt about whether law in isolation is a source of value and meaning, or whether it must...
(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
- 2003 Law, Pragmatism and Democracy, ISBN 978-0-674-01081-9
- 2003 Public Intellectuals: A Study of Decline, ISBN 978-0-674-00633-1
- 2003 The Economic Structure of Intellectual Property Law (Harvard Univ. Press) (with William LandesWilliam LandesWilliam M. Landes is an economist who has written widely about the economic analysis of law. He is a fellow of the American Academy of Arts and Sciences, which cited him for his pioneering work in the field...
), 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 LiteratureLaw and literatureThe law and literature movement focuses on the interdisciplinary connection between law and literature. This field has roots in two major developments in the intellectual history of law -- first, the growing doubt about whether law in isolation is a source of value and meaning, or whether it must...
, 3rd. ed., ISBN 978-0-674-03246-0 - 2009 A Failure of Capitalism: The Crisis of '08 and the Descent into DepressionA Failure of CapitalismA Failure of Capitalism is a major 2009 nonfiction book by Judge Richard Posner, the most-cited American legal scholar in history, among the most respected judges in the United States , and a major proponent of the economic analysis of law...
, 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)
External links
- Project Posner
- Richard A. Posner at the University of Chicago Law SchoolUniversity of Chicago Law SchoolThe University of Chicago Law School was founded in 1902 as the graduate school of law at the University of Chicago and is among the most prestigious and selective law schools in the world. The U.S. News & World Report currently ranks it fifth among U.S...
- Richard A. Posner at the University of ChicagoUniversity of ChicagoThe University of Chicago is a private research university in Chicago, Illinois, USA. It was founded by the American Baptist Education Society with a donation from oil magnate and philanthropist John D. Rockefeller and incorporated in 1890...
- The Becker-Posner Blog
- Posner's blog at The Atlantic
- Profile and Papers at Research Papers in EconomicsResearch Papers in EconomicsResearch Papers in Economics is a collaborative effort of hundreds of volunteers in 57 countries to enhance the dissemination of research in economics. The heart of the project is a decentralized database of working papers, preprints, journal articles and software components. The project started...
/RePEc - Richard A. Posner at the complete reviewComplete reviewcomplete review is a literary website founded in March 1999. It is best known for reviews of novels in English translation, in particular drawing attention to otherwise neglected contemporary works from around the world, but there are also reviews of classics, non-fiction, drama and poetry...
- "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
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