Tuesday, June 17, 2008

Richard A. Posner

Richard Posner is a judge on the 7th Circuit in Illinois whose scholarship, often associated with the Chicago School of Economics, particularly in the application of economics to law and also to matters of sexuality, had a large effect on my own intellectual development. I have a first edition of his book, Economic Analysis of Law, which he signed for me and I have often considered him a hero.

Unfortunately, I lost a lot of respect for Posner after reading one of his opinions in the field of criminal law where he upheld a particularly onerous sentence while finding a way to wedge what he thought was a clever joke into the opinion. As bright as we all know him to be, perhaps the demands upon him and other federal judges are not all that great given all the time he has to write books and be witty in his opinions. He appears not to have much regard for core principles of human rights and seems to view violations thereof as sort of misguided government ventures which he virtually always upholds.

On a less personal note, I also do not see that he is any more likely, all things considered, to be upheld in his decisions than other judges. He erred badly in an opinion on the sentencing guidelines in which he defiantly ignored (while pretending to be in compliance with) the Supreme Court's previous rulings on the guidelines and got smacked down by Clarence Thomas and Scalia.

What part of the word "advisory" did you not understand, Judge Posner? I mean, come on, how much respect can you have for a judge who doesn't know what the meaning of the word "advisory" is? Either Judge Posner was pandering to the Right in one last attempt to garner a Supreme Court seat, or he really isn't any legal genius in terms of following Supreme Court precedent.

In spite of all his unsolicited opinions about how to improve the legal profession and law schools, Posner, himself, has been guilty of shoddy, almost inexcusable practices at times. Perhaps, no one needs a lecture from Judge Posner about how to improve the legal field when he cannot even refrain from citing vacated opinions. http://sentencing.typepad.com/sentencing_law_and_policy/2006/09/does_judge_posn.html(Does Judge Posner know how to Shepardize or KeyCite?).

In short, Posner has lost a great deal of respect for his opinions on the sentencing guidelines, which frankly make me wonder whether it might not be time for him to take senior status. After all, doesn't the legal profession deserve better than this sort of shoddy work?

I still admire Posner greatly for his 1973 treatise on economics and law, in terms of popularizing the idea which was important. Posner, himself, has not shown much particular aptitude for the enterprise of applying economics to law, interestingly enough, unlike Coase, Demsetz and others. He has often, in fact, been a great aid to those who oppose the Right because of his cursory applications of what he deems to be "efficient" outcomes. In spite of his avowed opposition to the "war on drugs" his legal philosophy actually promotes it and his predictions for its demise after September 11th have been dead wrong.

In all, I find it hard to see Posner as any sort of legal great. Unlike Milton Friedman, or others associated with the Chicago School of Economics, Posner seems to flail to and fro, with essentially no core legal principles to guide him.

He is no Antonin Scalia (who in spite of all his faults, does indeed have core principles); he is no Hugo Black or William O. Douglas who actually believed humans had rights just because they were human, gasp!; he is definitely no Oliver Wendell Holmes Jr., although he seems to think he is, but perhaps Posner should be careful what he wishes for. (Holmes was certainly not particularly admirable in many of his writings which often seem inhumane and cruel--"three generations of imbecils", indeed). http://www.theatlantic.com/doc/200112/posner

What Posner does share with Holmes appears to be the certitude that he, Posner, is smarter than all the rest of us, and the ability to make this sentiment come through in his opinions.

If I had to characterize Posner, I would say that he is the P.T. Barnum of the legal world. He likes to shock people and will spout off all sorts of revolutionary-sounding things in his writings, but when push comes to shove, he is a conservative judge who basically rules conservatively in a conventional way, something that separates him from the Easterbrooks, Clarence Thomas's and Scalia's of the legal world, who will surprise us from time to time.

Here is an excerpt from the Wikipedia entry on Barnum--could this also apply to Judge Posner?:

Barnum never flinched from his stated goal "to put money in his own coffers." He was a businessman above all else, his profession was pure entertainment, and he was perhaps the first "show business" millionaire.

Posner's writings and gadfly antics have certainly made him a wealthy man, whether they have contributed to jurisprudence remains to be seen, but they probably have. As to his own merits as a judge, I am not sure how history will view Posner. One can only wonder how fair a judge can be when he refuses to stop pontificating on very nearly every policy field likely to come before him-- or does this aid in the selection of jurisdiction by plaintiffs who can choose their venue--but I digress.

At one time I might have thought Posner's career was a waste of talent by his not reaching the Supreme Court, but I no longer think it is true because whatever he had to offer, he has been able to do so with his numerous writing ventures, many of which have probably been partially underwritten by public taxpayers. Whatever the case, perhaps Judge Posner should curtail the publications and try to get his own legal house in order.


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