That’s a sensitive question to put to a judge.
– Richard Posner (see below)
Has any sitting appellate jurist ever entertained a wide swath of questions from a journalist, fellow judges, and law professors? The answer: Never, to the best of my knowledge. But if one had to pick such a jurist, Richard Posner would surely be (and is) that person. True to his realist image, he answered all of the questions posed to him and did so promptly and, for the most part, without reservation.
In order to get a range of views from different perspectives, I invited a number of noted legal figures to pose questions to Judge Richard Posner. Twenty-four responded; they are:
- Thomas Ambro
- William Baude
- Ryan Calo
- Erwin Chemerinsky
- Lawrence Cunningham
- Michael Dorf
- Barry Friedman
- David Hoffman
- Yale Kamisar
- Judith Kaye
- Hans Linde
- Adam Liptak
- Andrea Mays
- Linda Mullenix
- Robert O’Neil
- Frederick Schauer
- David Skover
- Daniel Solove
- Geoffrey Stone
- Kellye Testy
- David Vladeck
- Eugene Volokh
- Kathryn Watts
- Adam Winkler
Their questions, organized into 26 topics, are set out below followed by Judge Posner’s replies. Hyperlinks have been added where useful. Note: Some links will open in Firefox or Chrome but not in Safari. –RKLC
I. Clerking for Justice Brennan
Professor Robert M. O’Neil: Perhaps your most remarkable contribution as a Supreme Court clerk for Justice William Brennan was the total change in the status of Gray v. Sanders (1963). You initially drafted an opinion for the Justice that would have resulted in a decisive reversal of the Ninth Circuit ruling. But you quickly learned that the Court had preliminarily voted 7-2 to affirm. On the basis of your persuasive draft opinion, however, Justice Brennan promptly asked the Chief Justice to reassign the case. That soon resulted in a 7-2 reversal with only Justices Clark and Harlan dissenting. Two intriguing questions arise:
- Given the oral argument and the statutory context, why were you so sanguine about the prospects for reversal?
- And how did you eventually persuade Justice Brennan and four of his colleagues to reach a wholly different result?
[RC: Professor O’Neil clerked with Justice Brennan when Posner did.]
- I wasn’t. I was under the mistaken impression that the Court had voted to reverse.
- I didn’t use any persuasion. When Justice Brennan read my opinion, he said it was persuasive and he’d tried to persuade the Court to change its vote from affirm to reverse. His persuasive efforts must have been effective, though I don’t recall his having said anything to me about them.
- Among the Supreme Court opinions to which you made substantial and invaluable contributions, how would you appraise the Philadelphia National Bank (1963) case?
- To what extent did Justice Brennan or other members of the Court (or fellow clerks, or for that matter teachers like Harvard Professor Donald Turner) shape your views on those issues?
- Of the opinions I worked on, that was my favorite. I think it was influential on antitrust law and also convinced me to specialize in antitrust, which I did for the early part of my career, following the clerkship.
- The principal influence was Derek Bok, then a professor at Harvard Law School and later, of course, dean of the law school and later still president of Harvard University. He had written an important article on merger antitrust law, part of which I had cite-checked when I was on the Harvard Law Review. The article stuck in my mind and played a crucial role in my thinking about the Philadelphia Bank
II. Judging Justice Brennan
Professor Geoffrey Stone: You served as a law clerk to Justice William J. Brennan, Jr., a half-a-century ago. With the benefit of hindsight, how would you assess his contributions as a Justice?
Judge Posner: Obviously, he was very influential, in part because of his warm personality and willingness to compromise. I think Warren relied heavily on him. A number of the Warren Court’s most important decisions were his.
Professor Frederick Schauer: When you were a law student, Lon Fuller was a major figure at the Harvard Law School, and only a few years earlier his published debate with H.L.A. Hart was a major event at the school and in legal scholarship generally.
Could you comment on your views about the contemporary state of Anglo-American jurisprudence, whether that state is different from what it was fifty years ago, and, if different, what might account for the change?
Judge Posner: I never met or had a class from Fuller, and never cottoned to his views, and I don’t remember whether I ever read that debate. I never took a course on jurisprudence and I don’t think I had any interest in it. As an academic I became interested in it and wrote about it.
I like your work in jurisprudence, and that of Neil Duxbury and a few others, but much of the jurisprudence literature I find rather sterile. I found Ronald Dworkin’s approach unconvincing; likewise with H.L.A. Hart’s. I love the legal realists, above all Holmes, but also John Dewey, Jeremy Bentham, of course, Hans Kelsen, and Richard Rorty (not an exhaustive list), though law was far from a major interest of Dewey and Rorty.
IV. Law in a Globalized World
Judge Judith Kaye (ret):
- What is the impact of our radically globalized world on the business of the U.S. courts? How is our jurisprudence, our decision-making process, in any way influenced by the cultural diversity of the international issues we increasingly face?
- In that connection, what is the impact of the increased use of alternative dispute resolution mechanisms in international matters, inevitably still requiring resort to our courts?
- We get more cases involving foreign and international law, but I think the influence of foreign legal practices on our jurisprudence and decision-making processes is slight. We continue to resist inroads into the adversary system. I think that resistance is a big mistake, but I also think it’s a mistake to look to foreign judicial decisions for guidance to how we should deal with issues such as capital punishment, abortion, and international human rights. I think one has to have a deep understanding of a foreign culture in order to be comfortable with borrowing a foreign country’s law.
- I don’t know; I haven’t studied the issue, and have only a few cases.
V. Law & Economics
Professor Michael Dorf: I detect in your academic work (and to a lesser extent your work as a judge) a gradual drift from an economic analysis of law to pragmatism more broadly. Do you agree with that assessment, and if so, what do you think accounts for it?
[RC: Professor Dorf wrote the biographical entry on Judge Posner for the Yale Biographical Dictionary of American Law (2009).]
Judge Posner: You’re correct. It is partly a result of the inroads that psychology has made on economic analysis, partly a result of the economic profession’s failure to understand finance and monetary policy in the period leading up to the crash of 2008, and (relatedly) the revelations of unexpected extensive greed and corruption in American business, not limited to the financial industry.
Professor Ryan Calo: You are famously skeptical of the idea that the law should protect the efforts of market participants to conceal information about themselves. But the beauty of markets lies precisely in their ability to facilitate transactions between parties with wildly disparate backgrounds, tastes, and views — people who otherwise would avoid one another, but come together on the basis of a willingness to pay or receive a particular price.
How do you respond to the contention that a world without a meaningful degree of privacy in such situations would be a world full of balkanized, and hence deeply inefficient, markets?
Posner on Privacy
Judge Posner: I’m not opposed to legal protection of privacy. But I do regard privacy as a common means by which people present a misleading impression of themselves, often deceiving the people with whom they deal, either personally or in transacting. So I think we must be careful not to overprotect privacy.
Justice Hans A. Linde (ret.): You are widely known for linking law and economics and for advocating a pragmatic jurisprudence. These seem to pose two problems for a federal judge:
- Federal cases often arise from acts of Congress, not judge-made common law. What should a judge do when an enactment plainly places some people’s non-economic demands over the economic interests of the majority?
- Other disputes are between citizens of different states (or nations) that may have different legal answers to the disputed issue. How should a federal judge choose which state’s law applies to the case? That is, should a judge choose the laws of the state that is economically preferable, or is the choice prescribed by law?
- If a statute is clear, and constitutional, then I am bound. But the statutory provisions that get involved in appellate litigation very often are unclear, and then the judge has considerable freedom to select the interpretation that makes the most sense, though it won’t always be an economic sense.
- Conflict of law rules seem to me readily understandable in economic terms. If one thinks of the reasons for applying one state’s law rather than another’s, they generally have to do with which state has the greater interest in regulating the activity that gave rise to the suit. That’s the basis of lex loci delicti, which continues to be a sound doctrine that has largely survived modern loosey-goosey conflicts doctrine.
VI. The Record of a Case
Professor Frederick Schauer: You tend to go beyond the record, the briefs, and oral argument more often than most appellate judges, and you have noted that you have been criticized for it. Could you explain your practice, explain the criticism, and explain why you think the criticism misses the mark?
Judge Posner: I find that the briefs and arguments, and lower-court opinions, very often do not answer the questions that I think are important to a sound understanding of the case. So, I look for the answers, often by an Internet search. I tell lawyers if you don’t like me doing that, do it yourselves. I do try to be sensitive to risk of error in judicial fact research. I understand the criticism, because the lawyers want to control the case. They invoke the glories of the adversary system. I think the adversary system is overrated. Not that I want to convert to the inquisitorial system that prevails in Europe (except the U.K.) and most of the rest of the world, but I want to see the adversary system taken down a peg. I am a big fan of Fed. R. Evid. §706, which allows a judge to appoint his own expert witness, as opposed to having to depend entirely on party experts.
VII. Experiential Knowledge Read More