Afterword: Posner at 75 – “It’s My Job”

Take him for all and all. William Shakespeare (circa 1600)

I live on my own credit. Friedrich Nietzsche (1888)

I believe in cremation. No tombstone for me. – Richard Posner (2013)

This is twelfth and final installment in the Posner on Posner series. (Note: some of the hyperlinks below may open in Firefox or Chrome but not in Safari.)

His temperament: largely solitary and characteristically confident. His manner: often distant and frequently detached. His character: habitually unconventional. He seems indifferent to creeds and causes. And he can be steel-like — cold, calculating, and controlling. Then again, catch him at the right part of the day, at the right tick of  the clock, and with the right circle of people and he can be witty and lively in his own unique way.

In all of these respects and others, one soon enough senses the obvious: Richard Posner is different. Nothing pejorative here, just descriptive. Besides, it has been a feature of his persona for so long as to have become his trademark. While there have been a few modifications of his views over the decades, the man himself has remained basically the same, though he may (?) have mellowed a bit. That said, Posner is ever the maverick; that is his calling card to the world.

The more we learn of him, the more he defies the norm of how most people think about most judges. Though we already know much about the public work of this jurist, there is still much to learn about the man himself — his inner thoughts, his private communications, and his personal traits. The biographical story is, after all, the most revealing of all stories.

The Boxer

Richard Posner turned 75 earlier this year (on January 11th – the same date of William James’ birth). The New York born jurist is in good health and exercises regularly: “A great deal,” he told me. “It’s my principal non-working activity.” When not reading or writing, he expends his energy on an elliptical trainer and does balance exercises. “I have an elliptical trainer at home and also do a lot of walking outside,” he adds. He takes heart-pumping walks inside, too, and is known for climbing “the stairs to his office on the 27th floor of the Everett M. Dirksen Federal Building in Chicago.”

UnknownTo look at his fit frame one might guess that he exercises. And like all else in his life – be it mental or physical – Posner takes such matters seriously. “I have a personal trainer twice a week. He puts me through all sorts of strenuous exercises, including push-ups and pull-ups.” And then there is “boxing with a sixty-pound hanging leather punching bag (not a live person).”

Though he dislikes professional boxing, he sure loves to box . . . with a boxing bag, that is. He pounds away with his Everlast gloves landing blow after body blow at this stuffed specimen of a man. It is all part of his private workout regimen in the basement of his trainer’s quarters. “I had [a punching bag] of my own,” he says, “but I had to give it away because it upset the cat [the famed Pixie]. The bag was suspended from a steel frame that, because of the unevenness of the floor in the only room in which the contraption fit, rattled disconcertingly.” So he took his pounding elsewhere. And why this form of exercise? “My doctor says that boxing is excellent exercise,” he adds.

The boxing image fits – well, sort of. On the one hand, Richard Posner is a natural born boxer given all the cerebral bouts he has been in over the years – and he still returns to that ring time and again like a resilient Rocky Balboa. On the other hand, Richard Posner is too brainy / too soft mannered / and too genteel to engage in the real sport. Besides, he’s too pragmatic to like such a brutal sport: “I worry about brain damage to professional boxers,” he tells me.

Mix his cerebral and physical sides and what do you have? Quite simply, a man who likes to punch but doesn’t like boxing; a man who savors the sport of dialogic give-and-take but disdains the mano a mano reality of the ring; and a man who, at 75, is determined to remain mentally and physically fit, if only to force the Grim Reaper to go several extra rounds.

Holmes & Posner: Similar Yet Very Different

Justice Holmes

Justice Holmes

Sometimes comparisons are made between Oliver Wendell Holmes and Richard Posner. And Holmes is the jurist Posner most respects – that “most illustrious figure in the history of American law” is how he described him in the book Posner edited of the great Justice’s works. However true such comparisons might be, it is useful to consider how the two jurists were situated at the same points in their lives. To do that, one must turn the biographical clocks back and then forward.

* * * *

1916 was a good year, a very good one for Justice Holmes. That said, he penned no great opinions or scholarly works and gave no significant speeches that year. And yet it was a memorable year. Why? Because that was the year that Holmes turned 75 on March 8th. Four events occurred that year that made it a special one in the jurist’s life.

First, there was the small dinner party that his wife Fanny had arranged. It was a modest affair: a few friends (all accomplished men), some good food and drink, and birthday well wishes to cap it all off. As the guests left, the tall and tired jurist headed towards his library when he suddenly heard strange sounds – the sounds of birds, many of them. What could it be? He went downstairs to find out. Much to his surprise, and there beyond the parlor, was young group of admirers tooting away with bird callers in his birthday honor. All Fanny’s doing, of course. There was “much laughter and jaw,” recalled Holmes, “until after midnight.” One of celebrants went so far as to write “some very pretty verses,” which touched the white-haired Justice. By the time the parting hour arrived, Holmes was quite content: “Altogether it was very charming.”

UnknownSecond, there was the Harvard Law Review festschrift (29 Harv. L. Rev. 565) that Felix Frankfurter had organized. Now OWH was being publicly honored, and in print. And what an esteemed group of men: Professors Felix Frankfurter and Frederick Pollock, Deans Roscoe Pound and John Henry Wigmore, Judge Learned Hand, and Morris Cohen, the philosopher. Writing to Frankfurter in April of 1916, Holmes expressed his appreciation: “Very few things in life have given me such pleasure.”

Third, in June of 1916 the Senate confirmed Louis Brandeis. Once confirmed, Holmes opined that Brandeis “will make a good judge.” And so he sent him a very short telegram: “WELCOME.” It was the beginning of a judicial friendship that would help buttress Holmes’ fame . . . even at 75.

And finally, that was the year that Holmes met Harold Laski, a young British political theorist who would also have a hand in shaping the future of Holmes’ thought.

Of course, Holmes lived another 15 years, during which time he solidified his reputation and further secured his position in the gallery of great jurists. In the years following his 1916 birthday, Holmes wrote memorable opinions (majority and separate) in cases such as: Hammer v. Dagenhart (1918), Schenck v. United States (1919), Abrams v. United States (1919), Silverthorne Lumber Co. v. United States (1920), Adkins v. Children’s Hospital (1923), Gitlow v. New York (1925), United States v. Schwimmer (1929), and Baldwin v. Missouri (1930).

* * * *

Holmes savored the shared life; Posner bears it. Holmes socialized, Posner exercises. As for birthday celebrations and the like, RP has no time and little patience for such flattery: “I don’t like celebrations or parties” he says with icy certitude. At 75, there were no festschrifts for Posner (though an issue of the University of Chicago Law Review commemorated his 25 years on the bench – notably, the issue contained several critical essays). And no Louis Brandeis or Harold Laski is likely to influence his cerebral course (though in earlier years he had Aaron Director, George Stigler, and Gary Becker, who all helped to shape his thoughts). And so, when his life clock turned 75, it came and went sans any surprises . . . and that’s the way he likes it.

Screen Shot 2015-01-02 at 10.57.57 AMBy three score and fifteen, Posner, like Holmes, has accomplished much. Notably, he has written more (far more) than the famed jurist, and Posner’s Economic Analysis of Law may well have as much influence and staying power as Holmes’s The Common Law. And in his finer opinions, Posner displays “a fierce intellectual curiosity, a genuine engagement with ideas, an eagerness to cut through the legal babble to get to the core of the issue,” says Professor Geoffrey Stone, “and an evident delight in occasionally reaching results that startle admirers and critics alike” — all exceptional traits for a sitting federal appellate judge.

While Judge Posner has no single opinion that is likely to be as memorable as Holmes’s Lochner dissent (he is, after all, a circuit judge, not a Justice), the cumulative impact of Posner’s many writings (both on and off the bench) has certainly left a significant imprint on American law. Even so, the question remains: Will he prove to be like Holmes and further solidify his fame, or has he already reached the pinnacle of his career in law and letters?

Methodology Matters

Judicial greatness is often in the eye of the beholder. Many of the standards adopted for determining the greatness of a judge are designed to ensure the selection of particular judges or to favor judges who reach certain substantive outcomes. For example, in suggesting creativity, intelligence, and frequency of citation as plausible yardsticks for measuring judicial greatness, Judge Richard Posner has largely settled on standards that reflect best on himself. — Michael J. Gerhardt (1995) 

Though he cares not about reputation or greatness when it comes to his own record (or so he likes to say), he does like to fish in such waters – only witness his book Cardozo: A Study in Reputation (1990) and his 1994 Yale Law Journal review essay of Gerald Gunther’s biography of Learned Hand (the review is titled “The Hand Biography and the Question of Judicial Greatness”). In both works Posner went to great lengths to formulate criteria for measuring judicial reputation and/or greatness. Though it is hard to imagine that the idea did not occur to him, Professor Gerhardt’s point is surely true – Posner does rather well by Posnerian criteria. (See Ronald Collins & David O’Brien, “Gauging Reputations, National Law Journal, pp. 13-14, April 1, 1991.)

Whatever the methodology of measuring judicial greatness, the sheer volume and diversity of the Posner corpus of writings render the evaluative biographical task rather daunting. It is a brute biographical fact: The Posnerian tentacles are too numerous and reach too far for any single work by a lone biographer to grapple with authoritatively. To further the biographical process along, some exacting scholarly work would have to be done by several experts who could evaluate Posner’s take on a given field of the law (see e.g. here). Those areas would include:

  • administrative law
  • animal rights (see here & here for RP’s views)
  • antitrust
  • arbitration
  • bankruptcy
  • civil procedure
  • constitutional law
  • contracts
  • corporate law
  • criminal procedure
  • federal courts
  • habeas corpus
  • insurance
  • intellectual property
  • jurisprudence
  • labor law
  • prisoners’ rights
  • securities law
  • taxation
  • telecommunications law, and
  • women’s rights

By the same measure, there would also need to be experts in economics and various areas of the humanities. Posner’s writing style would have to be studied as well (on this count Mr. Domnarski has already done much, and ably so, and will do more in his forthcoming biography of the Judge). Then there is Posner’s view of judging.

Judges are not umpires, calling balls and strikes.Richard Posner (1995)

My job is to call balls and strikesJohn Roberts (2005)

Additionally, there would have to be some allowance for a probing study the man himself — the persona of Richard Posner. After all that, someone would have to step back and compile a comprehensive overview in order to put things in full biographical perspective. (Such a work might be along the lines of one of the books in the Cambridge Companion series.)

And yet more is needed: If it were to be rigorously true to its subject, any intellectual-biographical portrait of Richard Posner would include, but could not be limited to, some tabulation of how other courts and scholars have referenced him – not just the number, but also the nature of the citations. Beyond the citation count, there is this question: If one were to map out the effects, if any, of Posnerian thinking over time, what would they show? Not just the economic effects, but also the jurisprudential, political, social, psychological, environmental, and human (as in humane) effects? If his reputational footprint were to prove as immense as his publication record, what would what future generations think of a Posnerian social order?

Masked Man

There is an intriguing line in Beyond Good and Evil:

“Everything deep loves a mask . . . [and] every deep spirit employs a mask.”

A version of that can be found on the pages of Judge Posner’s book on Cardozo:

“[W]e all wear masks in public.”

Dare one ask? — “What mask do you wear, Judge Posner?” And his response? You will get either no answer or an evasive one like, “how would I know?” Even so, can any self-respecting skeptic leave it there even if the good Judge is willing (for whatever reasons) to do so?

What would lifting the mask of the man charmed by “Nietzschean vitalism” reveal:

  • About Allen Posner the person as well as Richard Posner the judge?
  • About Posner’s unvarnished views on life and law?
  • About what undergirds Posner’s pragmatism?
  • About what is behind the curtain of Posner’s fidelity to empirical “truth”?
  • And about just how far has Posner’s faith in economics declined?

When the answers to all of these and yet other questions find their way to the skeptical light of day, what will be revealed?


Much as the epithet “Kafkaesque” describes some surreal distortion of life or law, so too “Posnerian” can be understood to describe some atypical way of thinking about life or law. To speak thus may be to take a lexical liberty of sorts; nonetheless, it fairly denotes the Posnerian influence on contemporary American legal thinking. 

* * * *

In various ways, Richard Posner has devoted a lifetime to attacking some of the foundational methods of legal interpretation (e.g., his attack on formalism). This he does even though some of the modes of legal thinking that he criticizes (see here re his attack on historicism) are so imbedded in our law as to be a part of its very grammar. Perhaps that explains his delight in contesting this or that legal cliche, if only to expose its hollowness. Time and again, he has assailed the Absolute, the True, and the Unconditional tenets of American jurisprudence. He mocks such fetishisms. His realism points elsewhere: Law is never fully settled; no, it is more like stepping into the chilled waters of Heraclitus’ ever-changing river. Even if he were to add a dollop of Posnerian nuance here or there, it could not alter the basic frame of his thought.

It is generalization, but one not without merit: Richard Posner wars with today, the today of much legal thinking (albeit with an occasional nod to the demands of the day). I any variety of ways, he is the man of tomorrow, not in any prophetic sense but in the sense of testing ideas and modes of thought that need time and a critical conceptual distance if they are to gain currency. But will the dawn of that tomorrow ever come?

Ask yourself: To what serious future use can Posner’s thinking be put? Since he has seeded so many different fields of law, the chances are fair that some tenet of his thinking might take root. He has already had much success and his current renown may well insure that lawyers, judges, and scholars will tap an even greater measure of his thought in the future.

Then again, there is the essence of that thought – that “Overthought” that hovers over so much of his skeptical thinking. In that respect, one is reminded of Friedrich Nietzsche, whose skepticism and interest in science were expressed in unabashed ways. While Nietzsche was bold Posner is qualifiedly so. Of course, these are but degrees on the same spectrum.

Of Nietzsche it has been said: “He was becoming fully aware that the philosopher who embarks on a relentless struggle against everything that human beings have ever hitherto revered will be met with a hostile public reception, one that will condemn him to an icy isolation . . . .”

Might something of the same be said about Richard Posner in the context of the world of American law? To ask that question is, of course, to return to the one posed before. Whatever the value of measuring greatness, if one wishes to move the law along and thereby determine its direction, one must be politic enough not to slaughter sacred cows in open daylight. Or to alter the metaphor, one must wear a mask.

The Future of his Fame

imagesAgain, he claims to care not a bit about fame. And perhaps that’s true, though one may rightfully wonder. Moreover, does he really believe he can be the maverick jurist and thinker that he is – and someone who has had a notable impact on the law in an array of fields – and remain unscathed by skepticism? However that may be, for those who track the illumination of his star, there is much to consider.

Time is still on his side. Richard Posner continues to labor away at his life work and has no plans to retire. There may even be fifteen years on his lifecycle odometer. We’ll see. If his health remains, four factors may well determine the direction of his future fame:

# 1: His judicial fate: Great moments sometimes come to a judge because he or she is in the right place at the right time – think of John Marshall and Marbury, or Learned Hand and U.S. v. ALCOA, or Earl Warren and Brown, or William Brennan and Sullivan. The chance of such a case coming before one at a propitious moment very much increases the probabilities of a judge securing an esteemed place in the American legal mind, provided he or she wisely exploits that opportunity.

Screen Shot 2015-01-02 at 10.39.03 AMOne such example of the right timing mixed with the right reasoning is Judge Posner’s opinion in Baskin v. Bogan (7th Cir., 2014), the same-sex marriage case. Both in oral arguments and in the opinion rendered, Posner showed himself on the right side of history and did so by way of strong arguments (one commentator tagged them “formidable”) against the state’s defense of its discriminatory practice. Though some have criticized the opinion as “sloppy,” the net effect seems to have been to make it more difficult for a majority of the Justices to disagree, not only with the result but also with Posner’s reasoning.

There is also this: Even if a Marbury or a Brown or a Sullivan case were to come before our Posnernian-minded pragmatist judge, would he follow the example of Marshall or Warren or Brennan had he lived in their time? Maybe. Even if so, would his brand of judicial pragmatism be determinative? Or would other considerations move him in the judicial directions taken by those great Justices

# 2: His scholarly fate: What important books or articles does Judge Posner have left in him? Unlike Holmes at 75, Posner has much powder left in his extrajudicial cannon: Next year Harvard University Press will publish his latest book, Divergent Paths: The Academy and the Judiciary.

And, of course, Posner also has some scholarly articles waiting to be launched. All standard fare for the jurist who cranks out books and articles like an industrious Calvinist wed to the work ethic.

Something to puzzle over: Are quantity and variety enough? An array of forty diverse books is impressive until one considers the jurisprudential “jet lag” likely to set in with the onslaught of yet another Posner book. Think of it as the Posner Surplus Syndrome (PSS). Moreover, as one stares at rows and rows of Posner books (on all subjects from antitrust to asteroids) stacked on shelves (or digitally lined up on Amazon), the more thoughtful reader may ask: Is “more” the enemy of concentrated profundity? True, extraordinary volume may win a writer the widespread esteem of his contemporaries, but is it enough to sustain a place for Posner in tomorrow’s hall of intellectual influence? It may be if extraordinary insights coincide with extraordinary volume. Possible yes, likely no.

In this regard, consider Max Lerner (1902-1992), for example. He wrote numerous books on a wide range of topics, including an edited volume on Holmes that had a very long shelf life. Several of Lerner’s books were also much noticed and revered in their time – e.g., America as a Civilization (1957). But when the dust of the day settled over the land, the memory of Lerner was largely whooshed away by the drifts of time with only a workmanlike and forgotten biography to mark his small speckle of a spot in the history of American thought. Moral: Volume alone may not be enough, and today’s stature is no guarantee of tomorrow’s renown.

The critical question is whether Richard Posner has a breakthrough book or article left in him. Does he have a Hobbes’ Leviathan, a Freud’s The Interpretation of Dreams, a Nietzsche’s Thus Spoke Zarathustra, a Mill’s On Liberty, a Strauss’ Natural Right and History, a Kuhn’s The Structure of Scientific Revolutions, a Rawls’ A Theory of Justice, or any kind of Pulitzer Prize-like book remaining in the crevices of his mind? Or can he produce a groundbreaking law review article like Coase’s “The Problem of Social Cost,” or Warren & Brandeis’ “The Right to Privacy,” or Holmes’ “The Path of the Law”? (According to one study, as of 2012, Posner’s best article came in at 64 in the ranking of the most cited law review articles.)

To be sure, such a feat is a daunting task . . . even for Richard Posner. It is the kind of task that requires time and detachment, something a sitting judge does not have an abundance of. Judge Posner probably has the cerebral DNA to undertake such an adventure, but does he have the time, the will, and most of all, a great insight?

# 3: His biographical fate: After Holmes died his fame was rekindled time and again thanks to the likes of Felix Frankfurter and others (see the epilogue “The Long Shadow” in my Holmes book). And though Holmes received harsh criticism by way of some Catholic condemnation of his work in the 1950s, there was nothing quite hard-hitting and much-noticed until Albert Alschuler published his Law Without Values (2000). Even so, Holmes lives on and continues do reasonably well by way of his modern biographers – Liva Baker, G. Edward White, and Sheldon Novick.

Will Posner fare as well after the release of William Domnarski’s biography of him? When the curtain of his scholarship is drawn back and the more personal side of Dick Posner is revealed (by his personal correspondence, by countless comments from those who have known him, and by numerous interviews with him), what will those in the legal world and elsewhere think of him? Will detached merit be the only measure? And what of tomorrow’s scholarly scrutiny of the corpus of his jurisprudence?

Then again, has Richard Posner’s influence on American law already been so great as to make it largely immune from such attacks, be they personal or professional?

Posner on Academics

Many academics . . . who write about law don’t understand judges . . . . Or, especially if they are law professors, do understand but think it would be impolitic to speak frankly about judges. [It] is very important, however, that you be realistic about judges, otherwise you won’t know how to communicate with them . . . . The way the academic . . . talks about judges, whether they believe it or not, is that they think of judges as being like academics. They’re looking for correct answers to questions that arise in cases. They differ only in that they are not as smart as academics. We know they are not as smart because merit plays a smaller role in judicial selection than in academic selection. . . . The academics tackle questions they think they can answer. They pick their topics with a view to the feasibility of making progress on a particular topic. But the judges make decisions in cases that come at them randomly. So the judge’s duty is to decide, even if the judge has no idea what a correct sensible decision would be in a case, or a decision congenial to the judge’s views. The duty to decide is fundamental, and that makes a tremendous difference to how one thinks about problems, and what one brings to the problems . . . . – October 23, 2014, University of Chicago Law School remarks.

# 4: His Reputational Fate: As previously noted, if you want to know how to make the reputational call, read Posner’s Cardozo: A Study in Reputation (1990). Using some of the “measure[s] of magnitude” offered by Posner in that book, in 1990 he would have ranked third or fourth in all but one of the measurements (see Chapter 5, Tables 1, 3 and 4 in Cardozo). Even back then, he was ahead of Holmes, Brandeis, and Cardozo (Brennan topped the charts). And that was twenty-five years ago! If one were to apply his Cardozo criteria to Posner today, might he rank even higher?

Apart from crunching the citation numbers (which is more complex than it appears), one wonders how much of Richard Posner’s reputation will be affected by the rough-and-tumble philosophical scrapes he has engaged in with the likes of everyone from the late Ronald Dworkin to the lively Justice Antonin Scalia. And even his “admirers” may have some understandable reservations concerning some his off-hand, bravado-like comments, especially once such comments are tested in the ring of scholarly opinion.

Still, like a seasoned boxer he takes his licks and returns to fight another head-pounding round. But are these fights he can win without damaging his worth in the legal community? The fair-minded notice his lumps, partisans don’t, and Richard Posner, well, he doesn’t care.

Such considerations, aided by the coincidence of timing, could well influence the future value of Posner’s reputational stock. For those who follow these matters, Richard Posner’s place in the American judicial tradition is still a game in play. On that score, two additional points merit attention:

First, however Posner’s reputational matters play out, his star in the American galaxy of law is likely to shine brighter than many of the Supreme Court Justices of the past half-century – and that is a feat in itself.

Second – and this is the more revealing point – does he give a Faustian damn? If you were to ask him, he’d probably answer, “no, I really don’t care.” The irony: this man who appears to be the paragon of Ego, might (?) actually be just the opposite of that, which brings me to some closing speculations.

“It’s My Job”

I laid my heart open to the benign indifference of the universe. – Albert Camus (1942)

If Richard Posner is an enigma, it may be because he makes it so easy for us to paint our own biases onto his life canvas. From that conceptual vantage point, to look at our view of him may be no more than looking into the mirrors of our own predispositions (or “priors” as Holmes and Posner tag them). Since his maverick ways often defy the norms of our lives and the maxims of our law, we readily default less to the real man than to our judgmental caricature of him. We cast him in a confused image and then condemn him, which is all too easy and quite understandable. This is not to say, of course, that the man and his work are beyond fair judgment, for surely they are not. Furthermore, one must always be on guard of the Judge loading the dice by defining the rules of whatever conceptual game he invites us to engage in. Take heed.

Without daring to be his defense counsel, let me suggest that there is another lens by which to look at Posner and his work. It occurred to me by way of a simple and straightforward answer to the following question I asked him: “What motivates you to write the opinions and scholarly works you do?”

His answer was as swift as it was simple: “It’s my job.”

When I pressed him on this, he further replied: “I was in the Solicitor General’s office, and getting tired of it, when law schools began expressing an interest in hiring me. I wasn’t interested in a government career or in private practice, so I decided to try teaching. When I was solicited for the judgeship, I was spending a lot of time in consulting and getting bored with it, though it was lucrative. I figured correctly that as a judge I could still do academic research. I didn’t mind giving up teaching, which I had never especially liked. Both turned out to be sensible career moves.”

There you have it – nothing normative, principled, aspirational, egotistical, or philosophical. Just a job. Think of it: he likes his job; he likes to work; he likes to solve thought riddles; he likes to write; he likes his solitude; he likes to publish; and he does all this sans any faith in a Grand Principle or a belief in the Great Beyond or a hope for Glorious Recognition. Not this man! Here is what he told me on that score:

“I have absolutely no interest in my posthumous reputation, as death is oblivion (or so I believe), and so no one ever discovers what his or her posthumous reputation is.”

UnknownGiven that, maybe all the Holmes talk and all such comparisons to others are for nonsensical naught. Maybe our fixation with greatness really does not fit the Posnerian mold. Maybe he has no actual will to greatness. Maybe Dick Posner is no more than a skilled government worker doing his judicial job, a job that in his own way he enjoys. No fanfare, no explanation, no ulterior motive – just work, just a Joe doing his job but in ways so foreign to so many.

To take it up a philosophical notch, consider this: Is trying to understand Allen Richard Posner akin to trying to understand the detached French Algerian character Meursault in Camus’ The Stranger?

Maybe, just maybe . . . .

Tasks for Tomorrow

images-1More could be said and more needs to be said. And more time for reflection and revision would surely improve the exactness of my biographical sketch. For in the end, newly revealed evidence helps, tested and retested analysis counts, detachment matters, and a clear-headed willingness to be utterly frank are all part of the calculus of any worthwhile biographical enterprise.

Those are, however, tasks for tomorrow . . . for those who find the pursuit worth the effort, that is. For now, I am content to fade into the biographical twilight — and this with a parting nod to Judge Posner for doing what no other American appellate judge has ever done, or will likely ever do again.


The Posner on Posner series has been in the works for several months and has involved numerous e-mails back-and-forth with Judge Posner and others.

First and foremost, I thank Judge Posner for being so gracious with his time and so forthright in so many of his answers to my many questions – traits quite rare in public figures of his stature. I have never met the Judge and have never spoken with him on the phone. In that sense, there is something very impersonal about the rather personal e-mail communications we have shared (some 65 e-mails, starting on March 21, 2014 and ending on December 9, 2014 @ 8:50 p.m. ET). In retrospect, that form of communication is fitting in the sense that it seems true to his persona. However that may be, it has been an honor to have had an opportunity to work with him. In all of this, I hope my remarks have not strayed too far from the mark of reality. And I wish him well in his life journey — may there be more poetry in it.    

I also want to thank Dan Solove, the publisher of Concurring Opinions, for providing me the opportunity to contribute to this blog. Dan has been especially helpful in making the Posner on Posner series the success it appears to have been. The series is a testament to the value of blogs in legal scholarship and to the value of informed communication between the bench and the academy.

Special thanks to David Skover, my close friend and co-author of many years. David kindly reviewed and thereby improved several of the posts and this afterword.     

Finally, thank you to the 24 people (they are listed here) who wrote thoughtful questions for Judge Posner’s consideration.

Later this week a hyperlinked list of all of the installments of the Posner on Posner series will be posted on this blog.

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