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On Richard Posner

September 4, 2017

Richard Posner, a judge on the United States Court of Appeals for the Seventh Circuit, and a long-time member of the University of Chicago Law School faculty, announced on Friday, August 27, 2017, that he was retiring from the bench the very next day. See here. Posner had served on that court for 36 years, including seven years, from 1993 to 2000, as Chief Judge. 

 

To describe Posner as prolific is silly. Cass Sunstein, Erwin Chemerinksy, and Frank Easterbrook are prolific. Richard Posner is superhuman. My former colleague, Professor Nelson Lund, of the George Mason School of Law, said it best: Richard Posner is so prolific that there must be an island of people who collectively refer to themselves as Richard Posner. He’s right. Posner has written far more than most people can read: over 40 books; over 3300 judicial opinions, which, by the way, he wrote by himself; and far too many articles, essays, and blogposts to bother counting. See here. Although I won’t claim myself to have read nearly enough of it, see here, there’s no question that a remarkable portion of Posner’s work was also remarkably good. Not all of it is, to be sure, but none of us would assess William Shakespeare by Love’s Labour's Lost

 

Former GMUSL Dean, Henry Manne once told me that as far as he knew, he was the only person ever to fire Richard Posner. Apparently, Manne hired Posner to teach in the school’s summer Law and Economics program, as a law professor, meaning to teach law to economists. The program had a parallel track of economists who taught their discipline to law professors. Posner apparently failed. He was incapable of containing his integrative knowledge. Law without economics must have seemed unimaginable. It was not just that this is the glue that held the system together; rather it was that his profound insights had become part of his understanding of the law itself. 

 

Judge Posner exhibited some apparent public frustration. In a book, Public Intellectuals: A Study in Decline (Harvard 2003), Posner lamented the failing state of that profession. In his review of the book, David Brooks (ranked 85 out of 100 to Posner’s 70) described Posner as having made an ass of himself in his comprehensive effort to take the list down based on the notion that in modern times, no one actually cares about the quality of public intellectuals. See here. More recently Posner has let it be known that he thought the quality of the Supreme Court justices is wanting, with only two deemed good enough, Ruth Bader Ginsburg and Stephen Breyer. He claimed the last great justice was Robert Jackson. See here. Ouch. In response to criticism, Posner issued a seemingly harsher clarification, see here. And Judge Posner had a public feud with Justice Antonin Scalia, his one-time Chicago Law School colleague, who Posner claimed contradicted himself regarding the claimed disuse of legislative history. See here and here

 

Richard Posner’s greatest landmark work, Economic Analysis of Law, originally published in 1973, and now in its Ninth Edition, provides a vast and comprehensive survey. It builds upon a vast body of independent work, works coauthored with Chicago Economist William Landes, and others writing in the field. See here. In its initial rendition, Economics Nobel Laureate James Buchanan didn’t much care for it. Buchanan’s critical review, Good Economics: Bad Law, see here, claimed that Posner ironically failed to appreciate the distinction between legislation and law. This included not accounting for the competing norms beyond efficiency that inform judicial decisions.

 

A separate critique raised the question whether or how judges have the wisdom and efficacy to move common law rules toward efficiency. This problem is analogous to that which Chicago Economist Ronald Coase lamented in Arthur Cecil Pigou, who imagined the power of the state to find externalities and perfectly tax them to force the full cost internalization, rendering markets entirely efficient. Economists sometimes refer to this problem as the Nirvana Fallacy, finding an imperfect state of affairs and imaging the ability to render it flawless. Here the problem is exacerbated by the competing norms that Buchanan identified, which are not limited to efficiency, yet drive judicial decision making. 

 

The Landes and Posner project is partly susceptible to these critiques. The most successful part of this project involved unmasking efficiency stories from often peculiar and stubbornly resistant common law rules. But a challenge remained in figuring out what drove judges to render common law rules efficient. This part of his project proved less successful than what I think of as the larger project, namely explaining the underlying logic of the rules themselves based on the tool kit of economics. Part of the answer rests in thinking about the common law judicial process itself in terms of a decentralization process. 

 

The combined works of Paul Rubin and George Priest helped identify plausible mechanisms that allow the efficient development of common law rules, at least within certain historical periods. And these accounts, unlike Posner’s, did not rest on judicial motivation. Instead, they rested on selection effects, considering how common law processes might present more cases prone to inefficiency for correction. In Paul Rubin’s analysis, this arose from the probable line up of interests litigating on each side of formative bodies of law; in Priest’s analysis, it arose instead from the simple intuition that litigants gain more by seeking to displace inefficient rules with efficient rules than the other way around. Ultimately, these accounts are more persuasive than Posner’s. Even though neither is a panacea, each avoids the circularity of grounding common law efficiency in a judicial desire for efficient rules. 

 

Although scholars will surely commend Posner’s prolific writing, to me that is not his most admirable trait. To be sure, the trait is admirable inasmuch as it displays a remarkably curious mind coupled with an intense work ethic. But what I find more admirable, even when I disagree with him, is Posner’s willingness to call things as he sees them, defying convention or expectation, yet without being a maverick just for the sake of it. Whether or not Posner is a particularly great technical economist, or someone who happened into a field just as it most needed tending, Posner exemplified a value that is all too rare among legal social scientists. That is a willingness to let the chips fall as they may. He eschewed expectations. The early law and economics movement became closely aligned with libertarians, and for a time social conservatives. This was partly due to the political coalition that Ronald Reagan, who appointed Posner to the Seventh Circuit, had forged. And the problem with coalitions is what happens when the interests split, as they invariably do. 

 

Some law and economics scholars found sympathy with the social conservatives, favoring the jurisprudence of Antonin Scalia. Posner did not. Some have described him as libertarian, but I prefer to avoid such labeling. Without ever abandoning his commitment to the law and economics roots, Posner recognized that economic analysis offers a set of tools; it does not dictate outcomes. Posner was willing to let his analysis take him to unexpected places, not caring about whether those who were once in his “camp” continued to think of him as an ally. He let chips fall as they may. 

 

Posner rejected arguments that the Constitution should be narrowly construed based on original meaning; that statutes should be construed solely based on their wording, eschewing legislative intent, claiming this misread or at least over read claims of public choice; and that the Constitution should be construed as frozen in time with modern individual rights jurisprudence treated as an unhinged liberal endeavor. Posner parted ways with Antonin Scalia, and in doing so, forced a split among many scholars who once fell under the large tent of law and economics. There is some irony in the renaming of George Mason Law School as the Scalia Law School. Despite the early Posner firing, George Mason cut its teeth on Henry Manne’s Law and Economics program, and that was more profoundly influenced by Posnerian Law and Economics analysis than Scalia-style judicial conservatism. 

 

To be clear, economics answers none of the normative questions that inform Posner’s views on such social issues as same sex-marriage, abortion, and the war on drugs. But economics does inform the conversations by helping to frame important questions. Posner recognizes that economics does not equate to jurisprudential philosophy. One can be conservative, liberal, libertarian, or progressive and be a serious student of economics. He’s right. And demonstrating that might be Posner’s greatest legacy even if it is a lesson driven by his personal example more so than something written in one of his countless publications. 

 

Posner has an ego. Worse things can be said of giants in their field. To me there is a deeper issue. Just as Richard Posner could not teach law to economists unimpeded by his infused economic insights, I’m sure I’m not alone in finding impossible to imagine understanding or teaching law without the benefit of his remarkable intellectual achievements. Had Posner not done what he did, those of us committed to this project and methodology, regardless of our priors, would have had to make a start. Perhaps we might have found some island, and called ourselves Richard Posner. 

 

Perhaps Richard Posner laments not having been plucked from well-deserved obscurity to sit on the nation’s highest court. I hope not. After all, someone who is anything but obscure isn’t qualified to be so plucked. At some point, he knew that he wrote too much, said too much, expressed too many opinions. This was also the plight of Robert Bork, and Posner surely outwrote Bork, another prolific scholar and jurist, by quite a lot. Yes, the published opinions of Supreme Court justices will long be required reading in Constitutional Law I and II, subjects I happily teach, along with Law and Economics. But Posner’s influence will always be far greater. He has reshaped the framing of countless bodies of law for the benefit of students, professors, and judges alike. Whether or not we agree with his answers, there is no doubt that any serious legal scholar has to think hard about Posner’s questions. And that is a sign of a truly great scholar. 

 

Author's note: This post was revised on September 7 with the benefit of comments from Todd Zywicki.

 

Your comments are welcome.

 

 

 

 

 

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