Richard Posner

Early life and education

Born to a Jewish family in New York City, Posner graduated from Yale University (Artium Baccalaureus degree, 1959, summa cum laude), majoring in English, and from Harvard Law School (Bachelor of Laws, 1962, magna cum laude), where he was valedictorian of 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 United States Department of Justice, under Solicitor General Thurgood Marshall.

Legal career

In 1968, Posner accepted a position teaching at Stanford Law School. In 1969, Posner moved to the faculty of the University of Chicago Law School, where he remains a Senior Lecturer. 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 Judge 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 but remained a part-time professor at the University of Chicago. Judge Posner retired from the federal bench on September 2, 2017.

Posner is a pragmatist in philosophy and an economist in legal methodology. He has written many 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, 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, titled simply "The Becker-Posner Blog". Both men contributed to the blog until shortly before Becker's death in May 2014, after which Posner announced that the blog was being discontinued. 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 wrote in The Washington Post that he believed Posner would never sit on the Supreme Court because despite his "obvious brilliance," he would be criticized for 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.

Posner on Posner Series

Judge Posner was the focus of a "series" of posts (many Q&A interviews with the Judge) done by University of Washington Law Professor Ronald K. L. Collins. The twelve posts—collectively titled "Posner on Posner"—began on November 24, 2014 and ended on January 5, 2015 and appeared on the Concurring Opinions blog.

Legal and philosophical positions

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 viewed as to the right in academia, 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. As a judge, with the exception of his rulings with respect to the sentencing guidelines and the recording of police actions, Posner's judicial votes have always placed him on the moderate-to-liberal wing of the Republican Party, where he has become more isolated over time. In July 2012, Posner stated, "I've become less conservative since the Republican Party started becoming goofy." Among Posner's judicial influences are the American jurists Oliver Wendell Holmes, Jr. and Learned Hand.

In June 2016, Posner was criticized by right-wing media organizations for a column he wrote for Slate in which he stated, "I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation."

He has called his approach to judging pragmatic. "I pay very little attention to legal rules, statutes, constitutional provisions... A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute? The next thing...is to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. And the answer is that’s actually rarely the case. When you have a Supreme Court case or something similar, they’re often extremely easy to get around."

Abortion

Posner has written several opinions sympathetic to abortion rights, including a decision that held that late term abortion was constitutionally protected in some circumstances.

In November 2015 Posner authored a decision in Planned Parenthood of Wisconsin v. Schimel striking down regulations on abortion clinics in Wisconsin. He rejected the state's argument that the laws were written to protect the health of women and not to make abortion more difficult to obtain. Accusing the state of indirectly trying to ban abortions in the state Posner wrote, "They [Wisconsin] may do this in the name of protecting the health of women who have abortions, yet as in this case the specific measures they support may do little or nothing for health, but rather strew impediments to abortion."

Animal rights

Posner rejects the concept of animal rights. He recognizes the philosophical force of arguments for animal rights, but maintains that human intuition about the paramount value of human life makes it impossible to accommodate an ethic of animal rights.

Posner engaged in a debate with the philosopher Peter Singer in 2001 at Slate magazine, in which Posner argued against restricting the use of animals for food and in scientific experimentation. He agreed that gratuitous cruelty to animals should be avoided, but contends that animal welfare should only be advanced where doing so provides a marginal benefit to society.

Posner argues that animal rights conflict 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 that "it is wrong to give as much weight to a dog's pain as to an infant's pain." 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."

In a 2002 Yale Law Journal article, Posner again criticized animal rights. He also dismissed Gandhi's view that animal rights is consonant with a empathetic and moral society. He supported this conclusion by arguing that Hitler was a vegetarian and Nazi Germany had the most stringent animal-rights laws in history.

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's 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

The Bluebook is the style guide which prescribes the most widely used legal citation system in the United States. Posner is "one of the founding fathers of Bluebook abolitionism, having advocated it for almost twenty-five years, ever since his 1986 University of Chicago Law Review article on the subject." In a 2011 Yale Law Journal article, he wrote:

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.

Drugs

Posner opposes the US "War on Drugs" and called it "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 when compared to other substances. In a talk at Elmhurst College in 2012, Posner said that "I don't think that we should have a fraction of the drug laws that we have. I think it's really absurd to be criminalizing possession or use or distribution of marijuana."

Legal rules

In an interview with New York Times's Adam Liptak after announcing his retirement, Posner says he pays "very little attention to legal rules":

“I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”

The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case,” he said. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”

National security

At the Cybercrime 2020: The Future of Online Crime and Investigations conference held at Georgetown University Law Center on November 20, 2014, Posner, in addition to further reinforcing his views on privacy being over-rated, stated that "If the NSA wants to vacuum all the trillions of bits of information that are crawling through the electronic worldwide networks, I think that's fine. ... Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct," Posner added. "Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you." Posner also criticized mobile OS companies for enabling end-to-end encryption in their newest software. "I'm shocked at the thought that a company would be permitted to manufacture an electronic product that the government would not be able to search" he said.

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.

Patent and copyright law

Posner has expressed concerns, on the blog he contributed to with Gary Becker, that both patent and copyright protection, though particularly the former, may be excessive. He argues that the cost of inventing must be compared to the cost of copying in order to determine the optimal patent protection for an inventor. When patent protection is too strongly in favour of the inventor, market efficiency is decreased. He illustrates his argument by comparing the pharmaceutical industry (where the cost on invention is high) with the software industry (where the cost of invention is relatively low).

Police recording

As part of a three-judge panel on the 7th Circuit in Chicago, weighing a challenge to the Illinois Eavesdropping Act, which bars the secret recording of conversations without the consent of all the parties to the conversation, Posner was to deliver another memorable quote. At issue was the constitutionality of the Illinois wiretapping law, which makes it illegal to record someone without consent even when filming public acts like arrests in public. Posner 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." The 7th Circuit upheld the challenge, 2–1, striking down the Eavesdropping Act, but Posner wrote a dissenting opinion.

Prisoners

In a dissent from an earlier ruling by his protégé 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."

Race and public education

Posner's views of public education policy are informed by his view that groups of students differ in intellectual ability, and therefore, that it is faulty to impose uniform educational standards on all schools. His view in this regard is undergirded by his view that different races differ in intelligence. (However, Posner says that he thinks it is "highly unlikely" that these differences are rooted in genetics, rather than environment.)

In a blog post, Posner wrote, "I suggest that the only worthwhile reforms of teacher compensation are raising teacher wages uniformly, providing recognition and modest bonuses for outstanding teachers, and increasing hiring standards." In the same post, he wrote, "I am not clear what we should think the problem of American education (below the college level) is. Most children of middle-class... Americans are white or Asian and attend good public or private schools, usually predominantly white. The average white IQ is of course 100 and the Asian (like the Jewish) almost one standard deviation higher, that is, 115. The average black IQ is 85, a full standard deviation below the white average, and the average Hispanic IQ has been estimated recently at 89. Black children in particular often come from disordered households, which has a negative effect on ability to learn and perhaps indeed on IQ.... Increasingly, black and Hispanic students find themselves in schools with few white or Asian students. The challenge to American education is to provide a useful education to the large number of Americans who are unlikely to benefit from a college education or from high school courses aimed at preparing students for college."

Same-sex marriage

In September 2014, Posner authored the opinions in the consolidated cases of Wolf v. Walker and Baskin v. Bogan challenging Wisconsin and Indiana's state level same-sex marriage bans. The opinion of the three-judge panel on the 7th Circuit Court of Appeals ruled that Indiana and Wisconsin's bans on same-sex marriage were unconstitutional, affirming a lower court ruling. During oral arguments, Wisconsin's Attorney General cited tradition as a reason for maintaining the ban, prompting Posner to note that: "It was tradition to not allow blacks and whites to marry – a tradition that got swept away." Though Posner argued in his 1992 book Sex and Reason that prohibitions against gay marriage were rationally justified, he held in the 2014 cases that the same-sex marriage bans were both "a tradition of hate" and "savage discrimination". Posner wrote the opinion for the unanimous panel, finding the laws unconstitutional under the Equal Protection Clause. The Supreme Court then denied writ of certiorari and left Posner's ruling to stand.

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 other judges, he writes all his own opinions. Nobel Laureate economist Robert Solow says that 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", though the economist describes the judge's grasp of economics as, "in some respects, ... precarious."

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. An example is 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.

A study published by Fred Shapiro in the University of Chicago's The Journal of Legal Studies found Posner is the most-cited legal scholar of all time by a considerable margin, as Posner's work has generated 7,981 cites compared to the runner-up Ronald Dworkin's 4,488 cites.

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 published a commemorative issue: "Commemorating Twenty-five Years of Judge Richard A. Posner." Posner's former clerk, Tim Wu, 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.

Personal life

Posner and his wife, Charlene Horn, have lived in Hyde Park, Chicago, for many years. His son Eric Posner is also a prominent legal scholar and teaches at the University of Chicago Law School. Posner is a self-described "cat person" and is devoted to his Maine Coon, Pixie. Posner appeared with his previous cat, a Maine Coon named Dinah, in a photograph accompanying a lengthy profile (of Posner) in The New Yorker in 2001. He has been known to illustrate legal points in his opinions with elaborate cat-related metaphors and examples.

Books

Articles