Richard Posner

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Richard Allen Posner
Posner giving a talk at Harvard Law School to the Harvard Federalist Society (2009)
Judge on the United States Court of Appeals for the Seventh Circuit
Incumbent
Assumed office  1981
Nominated by	Ronald Reagan
Preceded by	Philip Willis Tone
Chief Judge of the Seventh Circuit
In office 1993–2000
Nominated by	(Automatic succession)
Preceded by	William Joseph Bauer
Succeeded by	Joel Martin Flaum
Born	January 11, 1939 (1939-01-11) (age 71) New York, NY
Spouse(s)	Charlene

Richard Allen Posner (born January 11, 1939) 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 movement.

Posner is the author of nearly 40 books on jurisprudence, legal philosophy, and several other topics, including The Problems of Jurisprudence; Sex and Reason; Overcoming Law; Law, Pragmatism and Democracy; and The Problematics of Moral and Legal Theory. The Journal of Legal Studies has identified Posner as the most cited legal scholar of all time,^[1] and a 1999 New York Times article identified Posner as one of the most respected judges in the United States.^[2]

[edit] 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^[3] 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.^[3] He went on to work in the Office of the Solicitor General in the U.S. Department of Justice, under Solicitor General Thurgood Marshall.^[3]

[edit] Legal career

In 1968, Posner accepted a position teaching at Stanford Law School.^[3] 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.^[2] 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.^[2]

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^[2] 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.^[4] He also has a blog at the Atlantic, where he discusses the financial crisis.^[5]

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 has taken a number of "outrageous" positions:

• Contention in a 1999 Raritan article that the rule of law is an accidental and dispensable element of legal ideology;
• Argument that buying and selling babies on the free market would lead to better outcomes than the present situation, government-regulated adoption;^[6]
• Support for the legalization of marijuana and LSD.^[7]

[edit] Legal positions

Judge Posner making a dinner speech at Federal Trade Commission

Posner's political and moral views are hard to summarize. His parents were affiliated with the American Communist party, and in his 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.^[3] Posner summarized his views on law and economics in his 1973 book The Economic Analysis of Law.^[3]

Today, although generally considered a figure of the right, Posner's pragmatism, his qualified moral relativism and moral skepticism,^[8] 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.

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.^[3] 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.^[3]

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.

Abortion

He has written several opinions sympathetic to abortion rights, including a decision holding "partial-birth abortion" constitutionally protected in some circumstances.

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.

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.^[9] 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."^[9]

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."^[10][11]

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."^[3]

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.^[12][13][14] 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.^[15]

[edit] Judicial career

Posner is one of the most prolific legal writers, through both his massive amount of opinions and other writings;^[16] unlike many judges, he writes all his own opinions.^[3]

He authored 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.^[17]

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."^[3] Nevertheless, he abided by the previous decision with his ruling.^[3] 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 criticisms and his decision to abide by the ruling until the Court decided to change it.^[18]

In 1999, Posner was welcomed as a private mediator among the parties involved in the Microsoft antitrust case.^[2]

[edit] Awards and honors

A 2004 poll by Legal Affairs magazine named Posner as one of the top twenty legal thinkers in the U.S.^[19]

In 2008, the University of Chicago Law Review published a commemorative issue titled “Commemorating Twenty-five Years of Judge Richard A. Posner."^[20] A website, Project Posner, details all of Posner's many legal opinions.^[21] It was begun by Posner's former clerk, Tim Wu, who calls Posner "probably America's greatest living jurist."^[16] 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."^[22] 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.^[3]

[edit] Major publications

The following is a selection of Posner's writings.

[edit] Selected Books

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

[edit] Selected articles

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

[edit] See also

• List of law clerks of the Supreme Court of the United States
• George W. Bush Supreme Court candidates
• Gary Becker
• American philosophy
• List of American philosophers
• Academic views on the Federal Trade Commission

[edit] References

• Richard Posner at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.

[edit] External links

• Larissa MacFarquhar, "The Bench Burner", The New Yorker, Dec. 10, 2001, pg. 78
• Richard A. Posner at the complete review
• Complete-Review.com's "Reactions to Richard Posner's Public Intellectuals"
• The Becker-Posner Blog
• Posner's blog at The Atlantic
• Posner's biography
• Posner's Site
• Project Posner
• 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
• Video Interview of Judge Posner, one hour, with Charlie Rose