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Richard Allen Posner - Further Readings

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"[A] PRAGMATIC APPROACH [TO LAWISONE] THAT IS PRACTICAL AND INSTRUMENTAL RATHER THAN ESSENTIALIST—INTERESTED IN WHAT WORKS AND WHAT IS USEFUL RATHER THAN IN WHAT 'REALLY' IS. IT IS THEREFORE FORWARD-LOOKING, VALUING CONTINUITY WITH THE PAST ONLY SO FAR AS SUCH CONTINUITY CAN HELP US COPE WITH PROBLEMS OF THE PRESENT AND THE FUTURE."
—RICHARD A. POSNER

Author, legal scholar, and federal judge, Richard A. Posner is one of the most influential and controversial figures in contemporary American law. Posner rose to prominence first in academia in the early 1970s, when he championed economic analysis of the law. With his faith in free-market capitalism and the goal of economic efficiency, he became one of the leaders of the so-called CHICAGO SCHOOL of antitrust theory, whose ideas left a broad mark on this area of law over the next decade and a half. In 1981, Posner was appointed to the U.S. Court of Appeals for the Seventh Circuit, and in 1993 he became its chief judge. In addition to issuing more than

Richard A. Posner.
REUTERS NEWMEDIA INC./CORBIS

double the national average of judicial opinions annually, Posner has continued to publish many articles and books that range across legal, social, and intellectual topics.

Posner's ascent began immediately after his graduation from Harvard Law School in 1962. After he graduated first in his class, he clerked for U.S. Supreme Court Justice WILLIAM J. BRENNAN JR., who reportedly regarded him as one of the few geniuses he had ever known. A career as a government attorney followed, with stints on the FEDERAL TRADE COMMISSION (FTC); in the DEPARTMENT OF JUSTICE, working for solicitor general THURGOOD MARSHALL; and in President LYNDON JOHNSON's administration. During this time, Posner also served on a highly visible AMERICAN BAR ASSOCIATION commission that evaluated the FTC, which established him as a strong supporter of free-market capitalism and a critic of federal regulation.

In 1968, Posner left government service for academia. He taught at Stanford Law School for a year before leaving for the University of Chicago, where he would soon make his mark as a leading legal theorist. Economics served as the foundation for his approach; like adherents of the nineteenth-century Utilitarian movement in ENGLISH LAW, Posner believed firmly in the values of the free market and individual initiative. Many legal problems, he argued, were best approached using economic models of analysis, including those in areas that were not directly related to economics, such as criminal and CONSTITUTIONAL LAW. The approach also had implications for public policy. In one widely cited example, Posner argued that the system of child ADOPTION would be improved if parental rights were sold, because it would reduce the imbalance between supply and demand. Although some critics accused Posner of reducing complexities to simple matters of dollars and cents, his 1972 book Economic Analysis of Law became standard reading in many law schools over the next two decades.

During the 1970s, Posner became a leader of the Chicago School of antitrust theory. This was a group of scholars, (mostly associated with the University of Chicago) who, like Posner, held antiregulatory and free-market views. The Chicago School sought to turn antitrust law—which is concerned with fair competition in business—on its head. At the heart of their arguments was the goal of economic efficiency. Posner and others urged the U.S. Supreme Court to abandon its critical view on so-called restraints of trade because business practices that had been thought to hurt competition actually helped it. Their theories had considerable impact on the Court and U.S. corporations for the next decade and a half.

Meanwhile, Posner's visibility grew. He published a prodigious amount of writing, established Lexecon, Inc.—a consulting firm specializing in economics and the law—and founded the Journal of Legal Studies. Then political fortune smiled on him: the administration of President RONALD REAGAN saw Posner and other members of the Chicago School as its intellectual bedfellows, providing theoretical muscle to its antiregulatory politics. In 1981, Reagan nominated Posner to the U.S. Court of Appeals for the Seventh Circuit, in Chicago.

The appointment provoked debate. In a decade and a half, Posner had accumulated a number of enemies in academia, nearly all of them on the political left. Although he considered himself a classical liberal in the tradition of JOHN STUART MILL, his ideas struck opponents as crass, latter-day conservatism. Leading the attack was RONALD DWORKIN, the prominent liberal professor of JURISPRUDENCE at New York University Law School and Oxford University.

Posner struck back, accusing his opponents in the professoriat of being afraid to take stands in their own work. However, he announced that he would avoid imposing his theoretical views from the bench.

As an appellate judge, Posner has defied the labels that his critics have applied to him. Some of his opinions have a conservative bent: In Dimeo v. Griffin, 943 F.2d 679 (7th Cir. 1991), for example, Posner wrote for an en banc majority that upheld mandatory drug testing for jockeys and others in horse racing, favoring the state of Illinois's interest in requiring the testing. Some of his other opinions have been more liberal: In Metzl v. Leininger, 57 F.3d 618 (7th Cir. 1995), Posner wrote an opinion that declared unconstitutional an Illinois law requiring schools to close on Good Friday, holding that the law violated the Establishment Clause of the FIRST AMENDMENT. Some of his opinions have employed his fascination for economics: In a 1986 case, American Hospital Supply Corp. v. Hospital Products Limited, 780 F.2d 589, he provided a mathematical formula for determining when PRELIMINARY INJUNCTIONS should be denied:

if the harm to the plaintiff if the INJUNCTION is denied, multiplied by the probability that … the plaintiff … will win at trial, exceeds the harm to the defendant if the injunction is granted, multiplied by the probability that granting the injunction would be an error.

Most notably, he has authored a much greater number of judicial opinions than have his peers on the federal bench. By 1994, he had averaged 77 opinions annually, as compared with the national average of 28.

Since the 1980s, Posner has exerted a strong influence on legal thought. He has argued against popular conservative criticism that judges are too aggressive and activist, asserting that judges must be able to exercise interpretative discretion. Besides being widely read and debated in academia, he found a popular audience with his 1992 book Sex and Reason, a critical analysis of sexual behavior. Posner is also a leading contributor to the LAW AND LITERATURE movement, impressing critics and supporters alike with his knowledge of jurisprudence and literary theory.

Although Posner stepped down as chief judge of the Seventh Circuit in 2000, he has remained visible. In 1999, U.S. District Judge Thomas Penfield Jackson named Posner to serve as a mediator in the Microsoft antitrust lawsuit that the federal government had brought. Posner was outspoken about the U.S. Supreme Court's decision in BUSH V. GORE, 531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000), where the U.S. Supreme Court held that the Florida Supreme Court could not constitutionally order a recount of thousands of votes for the 2000 presidential elections. In Breaking the Deadlock, Posner finds that the decision was abominable, but that the judgment was necessary to avoid a constitutional crisis.

Along with Economic Analysis of the Law, several of Posner's books are widely read among academics, including Economics of Justice, Law and Literature, and Antitrust Law. Posner has received numerous honorary degrees, including the degree of doctor of laws from Yale University, Georgetown University, the University of Pennsylvania, Syracuse University, and Duquesne University. He also has received numerous awards and has served in a variety of capacities in several scholarly and professional organizations.

Posner is married to the former Charlene Horn. They have two sons and three grandchildren.

CROSS-REFERENCES

Jurisprudence; Utilitarianism.

Posse Comitatus [next]

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