Tagged: jurisprudence

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Posner Mania — Two New Books Coming this January: One by Posner, the other on Posner

Can one ever have his or her fill of Richard Posner? Perhaps, perhaps not. However that may be, the maverick jurist will be in the limelight once again by way of two forthcoming books — yet another book by him, and biography about him (the first of its kind).

On New Years day of next year, Oxford University Press will release Richard Posner by William Domnarski. The book is slated to be 336 pages long and will sell for $29.95 in hardcover. Here is the publisher’s blurb on the book:

Unknown“Judge Richard Posner is one of the great legal minds of our age, on par with such generation-defining judges as Holmes, Hand, and Friendly. A judge on the U.S. Court of Appeals for the Seventh Circuit and the principal exponent of the enormously influential law and economics movement, he writes provocative books as a public intellectual, receives frequent media attention, and has been at the center of some very high-profile legal spats. He is also a member of an increasingly rare breed-judges who write their own opinions rather than delegating the work to clerks-and therefore we have unusually direct access to the workings of his mind and judicial philosophy.”

“Now, for the first time, this fascinating figure receives a full-length biographical treatment. In Richard Posner, William Domnarski examines the life experience, personality, academic career, jurisprudence, and professional relationships of his subject with depth and clarity. Domnarski has had access to Posner himself and to Posner’s extensive archive at the University of Chicago. In addition, Domnarski was able to interview and correspond with more than two hundred people Posner has known, worked with, or gone to school with over the course of his career, from grade school to the present day. The list includes among others members of the Harvard Law Review, colleagues at the University of Chicago, former law clerks over Posner’s more than thirty years on the United States Court of Appeals for the Seventh Circuit, and even other judges from that court.”

“Richard Posner is a comprehensive and accessible account of a unique judge who, despite never having sat on the Supreme Court, has nevertheless dominated the way law is understood in contemporary America.”

 → See The Promethean Posner – An Interview with the Judge’s Biographer, Concurring Opinions (Dec. 29, 2014)

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Three days after the release of the Oxford biography, Harvard University Press will release Divergent Paths: The Academy and the Judiciary by Judge Posner.  The 350-page book (he has done some 40 or so of them) will also sell for $29.95 in hardcover. Here is the publisher’s blurb on the book:

Unknown“Judges and legal scholars talk past one another, if they have any conversation at all. Academics couch their criticisms of judicial decisions in theoretical terms, which leads many judges—at the risk of intellectual stagnation—to dismiss most academic discourse as opaque and divorced from reality. In Divergent Paths, Richard Posner turns his attention to this widening gap within the legal profession, reflecting on its causes and consequences and asking what can be done to close or at least narrow it.”

“The shortcomings of academic legal analysis are real, but they cannot disguise the fact that the modern judiciary has several serious deficiencies that academic research and teaching could help to solve or alleviate. In U.S. federal courts, which is the focus of Posner’s analysis of the judicial path, judges confront ever more difficult cases, many involving complex and arcane scientific and technological distinctions, yet continue to be wedded to legal traditions sometimes centuries old. Posner asks how legal education can be made less theory-driven and more compatible with the present and future demands of judging and lawyering.”

“Law schools, he points out, have great potential to promote much-needed improvements in the judiciary, but doing so will require significant changes in curriculum, hiring policy, and methods of educating future judges. If law schools start to focus more on practical problems facing the American legal system rather than debating its theoretical failures, the gulf separating the academy and the judiciary will narrow.”

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  For more on Posner, see The Complete Posner on Posner SeriesConcurring Opinions (12 postings, Nov. 24, 2014 – Jan. 5, 2015)

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Grant Gilmore’s Resurrection . . . with a little help from Philip Bobbitt

 Grant was a magician in an age of bureaucrats. — Anthony Kronman (1982)

Grant Gilmore

Grant Gilmore

The Ages of American Law has been reissued with a new foreword and a new final chapter by Columbia Law School Professor Philip Bobbitt. More about that soon, but first a few words about the man recently reincarnated.

Grant Gilmore died on May 24, 1982 — the same date of Benjamin Cardozo’s birth (May 24, 1870). G.G. died in his sleep; he was 72.

Gilmore was a Yale man (AB, 1931, PhD, 1936 & L.L.B, 1942) bred in the Boston suburbs. He began his academic career teaching French at Yale, but he tired of it and so ventured into law. He taught at Yale Law School, University of Chicago Law School, the College of Law (now Moritz College of Law) at Ohio State University, and finally at Vermont Law School. His books included:

Though he was picked by the executors of the Oliver Wendell Holmes papers to do the definite biography of Justice Holmes (very strange!), it never came to pass. And he never published his PhD dissertation — Stephane Mallarme: A Biography and Interpretation (1936). By way of an interesting aside: In 1959 Professor Arthur Corbin privately recommended Gilmore to serve as an advisor for the drafting of The Restatement (2nd) of Contracts (also strange). As fate had it, that, too, never came to pass and Gilmore never became a “restater.”

By the time he died, the complex and cantankerous Gilmore had made his mark on the law, and a notable though peculiar mark it was. For all his fame and infamy, no gravestone marked his memory. His scattered ashes were his final consideration, illusory as that may seem.

Ironically, this bold and blazing scholar left his papers to the Harvard Law School — the same institution that held firmly to the conviction that “inspiration should be distrusted,” or so Gilmore put it in 1963, albeit with a critical cutting edge.

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Philip Bobbitt

Philip Bobbitt

And now, like the Phoenix of old, he returns to find new life. Or at least that part of him arising from The Ages of American Lawwhich has just been republished in Kindle form. Here, as Professor Bobbitt recounts it, is how it came to pass: “In late 2011, I was approached by an editor at Yale University Press, who was considering a revised edition of Grant Gilmore’s classic, The Ages of American Law. I responded that I would be pleased if the Press would publish, as a Foreword to such an edition, my 1975 essay in the Yale Law Journal introducing one of Gilmore’s lectures, ‘The Age of Anxiety,’ which he reworked to form Chapter 4 of the book. After reading that essay,” adds Bobbitt, “the editor proposed that it be published as a ‘historical document with a preface to provide context’ and that I should also draft a new section bringing it up to date, as apparently some readers wished in the classes in which the book is taught.”

41seNslJYSL._BO2,204,203,200_PIsitb-sticker-v3-big,TopRight,0,-55_SX278_SY278_PIkin4,BottomRight,1,22_AA300_SH20_OU01_That is how Bobbitt’s fascinating foreword begins. But there is much more, about Robert Cover, the famed Storrs Lectures (Oct. 1974), and young Philip Bobbitt’s role in it all. (Gilmore thanked Bobbitt in the acknowledgements to Ages. It was, after all, Bobbitt who had drafted the “Editors’ Introduction” to Gilmore’s “The Age of Anxiety” essay published in 1975 in the Yale Law Journal).

Bonus: There is a new 50-age chapter (#6) added to Ages: it is by Bobbitt and is titled “The Age of Consent,” which first appeared last year in the Yale Law Journal.

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 Book Review of The Ages of American Law, Mark Tushnet, American Journal of Legal History (1977).

→ Ellen A. Peters, “Grant Gilmore and the Illusion of Certainty,” Yale Law Journal (1982)

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The Complete Posner on Posner Series

The Posner on Posner series began on November 24, 2014 and ended with the Afterword on January 5, 2015. Below is a hyperlinked list of all the posts.

 Table of Contents

  1. The Maverick – A Biographical Sketch of Judge Richard Posner: Part I
  1. The Maverick – A Biographical Sketch of Judge Richard Posner: Part II, The Will to Greatness
  1. The Man Behind the Robes — A Q & A with Richard Posner
  1. The Judge & Company – Questions for Judge Posner from Judges, Law Professors & a Journalist
  1. On Legal Education & Legal Scholarship — More questions for Judge Posner
  1. On Free Expression & the First Amendment — More questions for Judge Posner
  1. On Privacy, Free Speech, & Related Matters – Richard Posner vs David Cole & Others
  1. On Judicial Reputation: More questions for Judge Posner
  1. Posner on Same-Sex Marriage – Then & Now
  1. Posner on Case Workloads & Making Judges Work Harder
  1. The Promethean Posner – An Interview with the Judge’s Biographer
  1. Afterword: Posner at 75 – “It’s My Job”

→ Forthcoming: Richard Posner (Oxford University Press, Spring, 2015) by William Domnarski.

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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).

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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?

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Posner on Same-Sex Marriage: Then and Now

. . .  I disagree with contentions that the Constitution should be interpreted to require state recognition of homosexual marriage on the ground that it is a violation of equal protection of the laws to discriminate against homosexuals by denying them that right. Given civil unions, and contractual substitutes for marriage even short of civil unions, the discrimination involved in denying the right of homosexual marriage seems to me too slight (though I would not call it trivial) to warrant the courts in bucking strong public opinion . . . . — Richard Posner (2005)

At various points [in oral arguments in the same-sex cases], Judge Posner derided arguments from the Wisconsin and Indiana lawyers as “pathetic,” “ridiculous,” and “absurd.” — David Lat (2014)

This is the ninth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, the sixth here, the seventh here, and the eighth one here.

Following the fourth installment in the Posner on Posner series of posts, someone commented on a point Judge Posner made in response to a question posed to him by Professor Kathryn Watts. That comment is set out below. Following it are excerpts from Judge Posner’s 1997 Michigan Law Review essay critiquing Professor William Eskridge’s The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment (1996). Accompanying them are some excerpts from Judge Posner’s opinion Baskin v. Bogan (7th Cir., Sept. 4, 2104, cert. denied and cert denied sub nom., 135 S. Ct. 316) in which he struck down two state laws banning same-sex marriage.

judgeposner_2010All of this is offered up duly mindful what Judge Posner said in a July of 2014 interview: “I’ve changed my views a lot over the years. I’m much less reactionary than I used to be. I was opposed to homosexual marriage in my book Sex and Reason (1992) [see here re those arguments], which was still the dark ages regarding public opinion of homosexuality. Public opinion changed radically in the years since. My views have changed about a lot of things.”

Of course, those comments from his 2014 interview with Joel Cohen were rendered before the Baskin case came before his court. Since the same-sex marriage cases are not  before the Supreme Court for review, I did not ask the Judge to comment on the matter.

That said, I begin with the online commentators remarks and will thereafter proceed to offer some excerpts:

  1. from Posner’s Sex and Reason (S&R)
  2. his Michigan Law Review essay (MLR)
  3. his Baskin opinion (BB), and
  4. some excerpts from the petition (CP) filed by the Attorney General of Indiana in Baskin since it references Judge Posner’s Michigan Law Review Essay and does so in support of its arguments for reversing the Seventh Circuit’s ruling.

Before offering any excerpts, however, I offer a historical sketch of the legal context in which Judge Posner found himself when he first wrote his book and law review essay and thereafter when he wrote his Baskin opinion.  

(Note: Some of the links below will open in Firefox and Chrome but not in Safari.)

Praise for Posner: On Judges Educating the Public

LGBT (12-3-14)Judge Posner, I am thinking you will probably read comments so I am taking this opportunity to reach out to you and sincerely thank you for your decision on the Wisconsin & Indiana cases on Gay Marriage. Your ruling was a Tour de Force (!) that got quoted & re-quoted all over the gay blogosphere. The lawyers and other Judges will remember other things you did, but the PUBLIC will remember your decision in the Gay Marriage cases. This will be the opinion that will be cited in the History books. And what was REALLY GREAT is how fast you turned it around. It was oral arguments, then BAM! . . .”

“How wrong you are when you say in your interview, ‘it’s unrealistic for judges to try to educate the general public. I don’t think the general public is interested in anything about judicial opinions except who won the case.’ Not in the Gay Marriage cases; the interest is not simply that we won, but WHY we won. Your words have been copied and pasted all over the gay blogosphere. I know that there is one gay website that gets 30 million hits a year, just that one site. Trust me your opinion was read by millions. It wasn’t simply who won, but WHY the gays won. It was validation to them, they read it and felt validated. You told them they were Equal, and that raised a lot of emotions. Tears were shed, a lot of them. People were commenting how they were reading your opinion and crying, it was very emotional for many, many people. Your opinion will most certainly go down in the history books on the history of the Gay Rights Movement. And I thank you deeply for it.”

______________________

The Historical Backdrop

UnknownTurn the clock back to 1992, the time when then Judge Posner published Sex and Reason. That was before the Hawaii Supreme Court’s seminal ruling in Baehr v. Lewin (1993) in which it ruled that denying marriage licenses to same-sex couples violated the equality of rights provision of the state constitution unless the state could demonstrate a compelling interest for such discrimination. And the year before Posner published his Michigan Law Review essay (when Eskridge taught at Georgetown), President Bill Clinton signed the Defense of Marriage Act into law. Recall, that law permitted the states to refuse to recognize same-sex marriages and remained on the books until Section 3 of the Act was declared unconstitutional by a 5-4 margin in United States v. Windsor. In 1999 Vermont Supreme Court took the lead in ordering the state legislature to establish laws permitting same-sex marriages (Baker v. Vermont was the case). In 2000 the Vermont legislature enacted just such a law, making Vermont the first state in the Union to recognize same-sex marriages.

 As for guidance from the Supreme Court, recall that Romer v. Evans (a rather confusing opinion by a divided Court) was handed down in 1996 and Lawrence v. Texas in 2003.

Different Domains: Scholarly Opinions vs Judicial Opinions 

If pursued with characteristic Posnerian relentlessness, [several of his] premises [in Sex and Reason] could yield radically pro-gay policies. But Posner does not press his analysis and, instead, neglects his stated first principles. His treatment of gaylegal issues tends to collapse into well-meaning ad hoc-ness.

[R]epealing sodomy laws and outlawing overt discrimination against bisexuals, gay men, and lesbians are easy cases for a rationalist, libertarian analysis. But a tough-minded cost-benefit analysis [such as the one Posner employs] would not stop with the easiest cases. Recognizing the same constitutional right to privacy for same-sex intimacy as is accorded different-sex intimacy, ending the military’s exclusion of bisexuals, gay men, and lesbians, and requiring states to issue marriage licenses to same-sex couples are conclusions that are scarcely less compelling under Posner’s first principles. Yet Posner himself rejects or avoids these latter conclusions. And he does not even discuss other issues of profound importance to lesbian, gay, and bisexual communities.                        – William Eskridge (1992)

Professor William Eskridge

Professor William Eskridge

One does not have to defend Richard Posner’s early views on same-sex marriage to concede the obvious: it was a different legal world. Still, a new legal order was emerging as evidenced by two noteworthy pieces by Professor William Eskridge: First, his 1992 Yale Law Journal review essay of Sex and Reason, and second, his 1993 Virginia Law Review article, “A History of Same-Sex Marriage.” And then there was Professor Robin West’s critical 1993 Georgetown Law Journal review essay on Sex and Reason.

 Richard Posner, an intermediate appellate judge, was not then a part of that emerging order. As a jurist he yielded, so he asserted, to the dictates of judicial modesty. While such dictates understandably restricted the direction of his judicial opinions, they need not have dictated the direction of his scholarly opinions in which he often demonstrated a unique cerebral bravado and a willingness to be a maverick in forging creative arguments. Moreover, in his capacity as a public intellectual and legal scholar, Posner was quite outspoken in refuting the critics of his work. See, e.g., his “The Radical Feminist Critique of Sex and Reason” (1993) article. In all of this, it is important to note that Posner nonetheless: (1) favored decriminalizing homosexual sex; (2) endorsed contracts of cohabitation for same-sex couples; and (3) was fine with legislative enactments legalizing same-sex marriage.

Thus, prior to the oral arguments in Baskin v. Bogan and the opinion in that case, what Posner had written in Sex and Reason and in his Michigan Law Review essay gave a meaningful degree of legal legitimacy to the campaign to oppose same-sex marriage. As late as 2004, Posner’s arguments were reproduced in a collection of essays (edited by Andrew Sullivan and first published in 1997) on same sex-marriage. And then there is his 2005 statement quoted at the outset of this post. It took nearly 17 years after the Michigan Law Review essay was published before Judge Posner expressed any significantly different views, first in a 2014 interview and then in a 2014 judicial opinion. Why so long?

A pragmatic reformer is concerned with what works and therefore cannot ignore public opinion or political realities just because the things he wants to change are not rooted in nature but instead are “mere” constructs. — Richard Posner (1995)

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On Judicial Reputation: More Questions for Judge Posner

Successful people often are insecure (though they may hide their insecurity behind a facade of bluster); it is what drives them to success. — Richard Posner (1994)

We are experts in self-presentation, in acting a part to further our aims and interests. We have, all of us, a public relations strategy.  Richard Posner (May 5, 2011)

I have never yearned for greatness!  Richard Posner (November 26, 2014)

This is the eighth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, the sixth here, and the seventh one here.

In Judge Richard Posner’s The Essential Holmes, he echoed a line from Oliver Wendell Holmes concerning John Marshall. This is that line: “A great man represents a great ganglion in the nerves of society, or to vary the figure, a strategic point in the campaign of history, and part of his greatness consists in his being there.”

Holmes’s resort to the word “ganglion” (meaning a swelling, or mass of nerve cell bodies, or a nerve cell cluster) is rather opaque — his use of the term is not readily apparent. But to tease the Holmesian metaphor out a bit, part of a judge’s greatness depends on a willingness and ability to successfully affect or change the nerve center of a society. In other words, a true capacity to alter something central. The alternative Holmesian account of greatness hinges on a combination of strategy and timing (or one might say Fortuna). That is, judicial reputation depends on a special ability to seize the perfect moment and act boldly – the case of John Marshall, circa, 1803, comes immediately to mind.

Surprisingly, to talk with Richard Posner one might assume from what he says in his all-too-causal manner that he has little or no interest in greatness or judicial reputation as it pertains to him. Strange from a man who has written on book on judicial reputation (not to be confused, he tells us, with judicial greatness) and who in so many ways seems to have a will for greatness. But don’t believe it, he admonishes us emphatically: “I have never yearned for greatness!”  

According to Judge Posner, Cardozo was a highly reputed jurist and Holmes was a great jurist. But what of Posner? Silence. Apparently, he doesn’t care to discuss it. Why? Perhaps because as a maverick jurist (and he is surely that), he cannot appear to seek public approval. And yet, if one were to invoke his own criteria for measuring judicial reputation, Judge Posner would rank quite high. (See e.g., Ronald Collins & David O’Brien, “Gauging Reputations, National Law Journal, pp. 13-14, April 1, 1991, and Lawrence Cunningham, “Cardozo and Posner: A Study in Contracts,” William & Mary Law Review (1985).) Fine, he might say, brushing it off with a disinterested look. And what of his legal legacy? Of that he claims to care not: “I have absolutely no interest in my posthumous reputation,” he assures us.

So there you have him: a great jurist (or should I say a highly reputed jurist?) who really does not care a bit about being seen as great. Speaking of that subject, see Richard Posner, “The Hand Biography and the Question of Judicial Greatness,” 104 Yale Law Journal 511, (1994).

All that said, in what follows, Judge Posner says a few things about these matters in connection with various American jurists.

Note: Some of the links used below will open in Firefox and Chrome but not in Safari.

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Max Lerner

Max Lerner

Question: In his book Nine Scorpions in a Bottle (1994), the late Max Lerner asserted: “There is no recipe for judicial greatness. Yet, if hard-pressed, I should settle for someone with a flexible mind, a compassion for the walking wounded, a refusal to be cowed by power, a capacity to live with the contradictions of life and to separate the permanent from the transient.” And then he added: “That is what I should call a passionately judicial temperament, and only a few have had it.” Before we turn to your own particular views on the subject, what is your opinion of Mr. Lerner’s recipe (albeit tentative) for judicial greatness?

Posner: [As for Lerner’s formula for greatness, I find it] a little puffed up. Forget greatness. A very good judge is a judge who is well educated and intelligent, hard working, willing to write his own opinions, curious about the real-world activities, transactions, and institutions out of which the cases he hears arise, collegial, and aware (so far as anyone can be aware) of his limitations and of the influences that play on him as a result of his upbringing, ideology, career, and temperament.

Posner on the Criteria for Judicial Greatness

For one thing the criteria of judicial greatness are contested. Some might insist that a judge’s greatness consists in the “rightness” of his decisions as judged by the test of time. I think that this is too demanding a standard. Most judicial decisions, even of the agreed-to-be-the-greatest judges, like most scientific discoveries, even of the universally acknowledged greatest scientists, usually are superseded and in that sense eventually proved “wrong.” I believe that the test of greatness for the substance of judicial decisions, therefore, should be, as in the case of science, the contribution that the decisions make to the development of legal rules and principles rather than whether the decision is a “classic” having the permanence and perfection of a work of art. . . Creativity is .  . . one possible criterion ofjudicial greatness. Another . . . . is the gift of verbal facility that enables a familiar proposition to be expressed memorably, arrestingly, thus enforcing attention, facilitating comprehension, and, often, stimulating new thought (in which case the expressive dimension of judicial greatness merges with the creative). [Source here]

Question: Almost a quarter-century ago you called on scholars to pay considerably more attention to “critical judicial study” by way of quantitative analysis of judicial reputation, influence, and achievement. Do you think that call has been heeded?

Posner: A little, not a great deal.

UnknownQuestion: The quantitative analysis you employed in Cardozo: A Study in Reputation (1990) turned largely, and understandably so, on a judge’s reputation within the legal community. But greatness surely extends beyond the confines of that domain and into the larger public realm. How is judicial reputation to be gauged at that macro level? And how does that pursuit of greatness differ, if at all, from one confined to the legal community?

Posner: No one outside the legal profession (with the intermittent exception of politicians) is interested in judges other than Supreme Court Justices. I don’t think it’s healthy for judges to worry about what lay people think of them.

Question: Most judges, you contend, “would rather be regarded as sound than as original, as appliers of the law rather than inventors of it. Judges find it politic to pretend that they are the slaves of the law, never its masters and the competitors of legislators.” If a judge takes that creed of moderation seriously, is such a jurist likely to be heralded as great?

Posner: As I said earlier, forget greatness. The judges who adopt the pretense will be respected by many other judges and applauded by legislators, who don’t like the idea of judges making law, though judges to make a great deal of law.

Question: You have suggested that “rhetorical power may be a more important attribute of judicial excellence than analytical power.” Why? And should that be so?

Posner: The analytical issues presented by cases are rarely complex or difficult, though lawyers and judges and law professors try to make them seem so. The insights of the excellent judges tend to be the result of intuition, experience, and temperament rather than of analysis, and the rhetorical power in which they are expressed are important to the persuasiveness and reception of the insights.

None of the [current Justices] has any empirical, technical background. They’re just humanities majors. Richard Posner, Oct. 23, 2014, University of Chicago Law School remarks.

Question: In terms of his position in American law, what single trait do you think best helps to explain Chief Justice John Marshall’s revered and lasting reputation?

Posner: He had a great deal of common sense and government experience, and he wrote forcefully and lucidly.

Justice Joseph Story

Justice Joseph Story

Question: By the time he died in 1845, Justice Joseph Story published twenty-one books after his three-volume Commentaries on the Constitution of the United States, which was a major legal work for its time and long afterwards. And he authored some important opinions such as Martin v. Hunter’s Lessee (1816), Swift v. Tyson (1842), and Prigg v. Pennsylvania (1842). And yet, today the man and his work seem to be largely forgotten. Why do you suppose that is?

Posner: I don’t know. I’ve never read anything by him. Prompted by your question, I read his opinion in Swift v. Tyson. I thought it was well written, though not as well written as Marshall’s opinions.

[RC: Consider Bernard Schwartz, “Supreme Court Superstars: The Ten Greatest Justices” (1995) (ranking Story as second greatest Justice.]

Question: I was struck by how much the reputational stock of some of the judges and scholars you listed in Tables 1-4 of your Cardozo book has dropped since you published that work in 1990. Is judicial reputation thus akin, at least in some general way, to the rise-and-fall celebrity stardom of, say, the Michael Jackson variety? If so, how does a judge best secure a reputation that lasts over generational time?

Posner: The decline is experienced by almost all judges, simply because law changes as society changes, and the old cases cease to have any relevance. Well-written opinions have the best survival chances, because the quality of the writing is independent of the currency or importance of the issues.

Question: The filaments of Holmes’ thought, you maintain, included “Nietzschean vitalism.” Tell us more about that and why you think it important. Read More

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On Privacy, Free Speech, & Related Matters – Richard Posner vs David Cole & Others

I’m exaggerating a little, but I think privacy is primarily wanted by people because they want to conceal information to fool others. Richard Posner

Privacy is overratedRichard Posner (2013)

 Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct. 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.Richard Posner (2014)

This is the seventh installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, and the sixth one here.

Privacy has been on Richard Posner’s mind for more than three-and-a-half decades. His views, as evidenced by the epigraph quotes above, have sparked debate in a variety of quarters, both academic and policy. In some ways those views seem oddly consistent with his persona – on the one hand, he is a very public man as revealed by his many writings, while on the other hand, he is a very private man about whom we know little of his life outside of the law save for a New Yorker piece on him thirteen years ago.

On the scholarly side of the privacy divide, his writings include:

  1. The Right of Privacy,” 12 Georgia Law Review 393 (1978)
  2. Privacy, Secrecy, and Reputation,” 28 Buffalo Law Review 1 (1979)
  3. The Uncertain Protection of Privacy by the Supreme Court,” 1979 Supreme Court Review 173
  4. The Economics of Privacy,” 71 The American Economic Review 405 (1981)
  5. Privacy,” Big Think (video clip, nd)
  6. Privacy is Overrated,” New York Daily News, April 28, 2014

For a sampling of Judge Posner’s opinion on privacy, go here (and search Privacy)

(Note: Some links will only open in Firefox or Chrome.)

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Privacy – “What’s the big deal?”

Privacy interests should really have very little weight when you’re talking about national security. The world is in an extremely turbulent state – very dangerous. — Richard Posner (2014)

Recently, Georgetown Law Center held a conference entitled “Cybercrime 2020: The Future of Online Crime and Investigations” (full C-SPAN video here). In the course of that event, Judge Posner joined with others in government, private industry, and in the legal academy to discuss privacy, the Fourth Amendment, and free speech, among other things. A portion of the exchange between Judge Posner and Georgetown law professor David Cole was captured on video.

Judge Richard Posner

Judge Richard Posner

Scene: The Judge sitting in his office, speaking into a video conference camera — As he rubbed his fingers across the page and looked down, Posner began: “I was thinking, listening to Professor Cole, what exactly is the information that he’s worried about?” Posner paused, as if to setup his next point: “I have a cell phone – iPhone 6 – so if someone drained my cell phone, they would find a picture of my cat [laughter], some phone numbers, some e-mail addresses, some e-mail texts – so what’s the big deal?”

He then glanced up from the text he appeared to be reading and spoke with a grin: “Other people must have really exciting stuff. [laughter] Could they narrate their adulteries or something like that?” [laughter] He then waved his hands in the air before posing a question to the Georgetown Professor.

“What is it that you’re worrying about?” Posner asked as if truly puzzled.

At that point, Cole leaned into his microphone and looked up at the video screen bearing the Judge’s image next to case reports on his left and the American flag on his right.

Cole: “That’s a great question, Judge Posner.”

Professor Cole continued, adding his own humor to the mix: “And I, like you, have only pictures of cats on my phone. [laughter] And I’m not worried about anything from myself, but I’m worried for others.”

On a more substantive note, Cole added: “Your question, which goes back to your original statement, . . . value[s] . . . privacy unless you have something to hide. That is a very, very shortsighted way of thinking about the value [of privacy]. I agree with Michael Dreeben: Privacy is critical to a democracy; it is critical to political freedom; [and] it is critical to intimacy.”

The sex video hypothetical

And then with a sparkle in his spectacled eye, Cole stated: “Your question brings to mind a cartoon that was in the New Yorker, just in the last couple of issues, where a couple is sitting in bed and they have video surveillance cameras over each one of them trained down on the bed [Cole holds his hands above his head to illustrate the peering cameras]. And the wife says to the husband: ‘What are you worried about if you’ve got nothing to hide, you’ve got nothing to fear.’”

Using the cartoon as his conceptual springboard, Cole moved on to his main point: “It seems to me that all of us, whether we are engaged in entirely cat-loving behavior, or whether we are going to psychiatrists, or abortion providers, or rape crises centers, or Alcoholics Anonymous, or have an affair – all of us have something to hide. Even if you don’t have anything to hide, if you live a life that could be entirely transparent to the rest of the world, I still think the value of that life would be significantly diminished if it had to be transparent.”

Without missing a beat, Cole circled back to his video theme: “Again you could say, ‘if you’ve got nothing to hide, and you’re not engaged in criminal activity, let’s put video cameras in every person’s bedroom. And let’s just record the video, 24/7, in their bedroom. And we won’t look at it until we have reason to look at it. You shouldn’t be concerned because . . .’”

At this point, Posner interrupted: “Look, that’s a silly argument.”

Cole: “But it’s based on a New Yorker cartoon.”

The Judge was a tad miffed; he waved his right hand up and down in a dismissive way: “The sex video, that’s silly!Waving his index finger to emphasize his point, he added: “What you should be saying, [what] you should be worried about [are] the types of revelation[s] of private conduct [that] discourage people from doing constructive things. You mentioned Alcoholics Anonymous . . .”

Cole: “I find sex to be a constructive thing.”

Obviously frustrated, Posner raised his palms up high in protest: “Let me finish, will you please?”

Cole: “Sure.”

Posner: “Look, that was a good example, right? Because you can have a person who has an alcohol problem, and so he goes to Alcoholics Anonymous, but he doesn’t want this to be known. If he can’t protect that secret,” Posner continued while pointing, “then he’s not going to go to Alcoholics Anonymous. That’s gonna be bad. That’s the sort of thing you should be concerned about rather than with sex videos. . . . [The Alcoholics Anonymous example] is a good example of the kind of privacy that should be protected.”

David Cole

Professor David Cole

Privacy & Politics 

Meanwhile, the audience listened and watched on with its attention now fixed on the Georgetown professor.

Cole: “Well, let me give you an example of sex privacy. I think we all have an interest in keeping our sex lives private. That’s why we close doors into our bedroom, etc. I think that’s a legitimate interest, and it’s a legitimate concern. And it’s not because you have something wrong you want to hide, but because intimacy requires privacy, number one. And number two: think about the government’s use of sex information with respect to Dr. Martin Luther King. They investigated him, intruded on his privacy by bugging his hotel rooms to learn [about his] affair, and then sought to use that – and the threat of disclosing that affair – to change his behavior. Why? Because he was an active, political, dissident fighting for justice.”

“We have a history of that,” he added. “Our country has a history of that; most countries have a history of that; and that’s another reason the government will use information – that doesn’t necessarily concern [it] – to target people who [it is] concerned about . . . – not just because of their alcohol problem [or] not just because of their sexual proclivities – but because they have political views and political ideas that the government doesn’t approve of.”

At this point the moderator invited the Judge to respond.

Posner: “What happened to cell phones? Do you have sex photos on your cell phones?”

Cole: “I imagine if Dr. Martin Luther King was having an affair in 2014, as opposed to the 1960s, his cell phone, his smart phone, would have quite a bit of evidence that would lead the government to that affair. He’d have call logs; he might have texts; he might have e-mails – all of that would be on the phone.”

The discussion then moved onto the other panelists.

Afterwards, and writing on the Volokh Conspiracy blog, Professor Orin Kerr, who was one of the participants in the conference, summed up his views of the exchange this way:

“I score this Cole 1, Posner 0.”

The First Amendment — Enter Glenn Greenwald Read More

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On Free Expression & the First Amendment — More Questions for Judge Posner

 The American concept of freedom of speech poses a challenge to the pragmatist because, like ‘democracy,’ it is the repository of a great deal of unpragmatic rhetoric. It is at the heart of the American ‘civil religion,’ a term well chosen to convey the moralistic fervor in which free speech is celebrated. — Richard Posner (2003)

This is the sixth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, and the fifth one here.  

Here, as elsewhere, controversy is never far from the conceptual corner where Richard Posner lingers. Merely consider, for example, the following point he made in a 2001 article: “political free speech is not an unalloyed blessing.” Or consider his take on the most famous line from NYT v. Sullivan — he tags it (see below) “empty rhetoric.” Or think about his views on privacy and the First Amendment (see Glenn Greenwald’s criticisms below). Such comments are sure to raise skeptical eyebrows among the rah-rah First Amendment crowd.

Then again, that crowd happily hails the Judge for the robust defense of free speech he displayed in NAACP v. Button (1963), which he takes credit for authoring while he was a law clerk to Justice William Brennan. And then there are his opinions in cases such  American Amusement Machine Association v. Kendrick, the violent video game case. For staunch conservatives, such as Justice Clarence Thomas, protection of such expression “does not comport with the original public understanding of the First Amendment.” No matter, Posner paves his own path, sans any Hugo Black-like passion in defense of free speech or any Clarence Thomas-like zeal in defense of originalism.  

Of course, there is more to be said about Posner’s pragmatic approach to our free speech jurisprudence, and on that score some will approve and others not. In the tumble of it all, he remains a Maverick, which is how he likes it.  

Some of the Judge’s more notable writings on free expression can be found in the following works:

  1. Economic Analysis of Law (9th ed. 2014) (chapter 29)
  2. Not a Suicide Pact: The Constitution in a Time of a National Emergency (2009) (chapter 5)
  3. Law, Pragmatism and Democracy (2003) (chapter 10)
  4. Frontiers of Legal Theory (2001) (chapter 2)
  5. The Speech Market and the Legacy of Schenck,” in Lee Bollinger & Geoffrey Stone, eds., Eternally Vigilant: Free Speech in the Modern Era 121 (2002)
  6. Pragmatism versus Purposivism in First Amendment Analysis,” 54 Stanford Law Review 737 (2002)
  7. Free Speech in an Economic Perspective,” 20 Suffolk University Law Review 1 (1986)

For a sampling of his First Amendment opinions, go here and search “First Amendment.”

Below are some questions, on the topic of free expression and the First Amendment, that I posed to the Judge followed by his replies. (Note: Some links will only open in Firefox or Chrome.)

NB: A segment of this post, quoting a well-known journalist, has been temporarily omitted because of a strong objection. I will explain why in this Monday’s post.      

Question: Is speech overprotected by our courts and in our culture?

Posner: I think so. The most notorious example is expenditures on political advertising — Citizens United and its sequels.

Question: Though the Pentagon Papers Case (1971) is much celebrated in First Amendment circles, you seem to think that the Court might have gone too far. Two questions:

  1. What is your criticism of the case?
  2. Does over classification of national security information raise a a First Amendment issue?

Posner:

  1. I don’t think there is a right to read classified material. National security classification is one of many sensible exceptions to freedom of speech, along with threats, trade secrets, defamation, distribution of child pornography, lawful wiretapping and other lawful searches for communicative material, copyright infringement, and much else.
  2. It could, if there were no security justification.

Question: The so-called “war on terrorism” is unlike the Great Wars in that the enemy is ever changing and even hard to identify and the duration of the conflict is indeterminate. How does this affect the calculus of free speech “in wartime”?

Posner: I don’t see why the nature of the military conflict should make a difference.

Question: You have written that “some restrictions on speech actually promote speech.” That general idea seems to be getting some traction among egalitarian-minded liberal scholars dissatisfied with certain tenets of current free speech doctrine. Can you say more about your thinking here, especially as it might apply to the liberal defense of speech restrictions?

Posner: An obvious example is copyright protection, which restricts speech (the speech of copiers) but promotes speech overall by granting legal protection to original speech. Another obvious example is restricting the number of speakers in a political debate so that the debate won’t degenerate into an unintelligible babble of interruptions. Similarly one doesn’t want to allow the use of threats to silence people. A subtle example is the censorship of the Elizabethan theatre, which may well have promoted creativity by forcing playwrights like Shakespeare to situate contemporary problems in exotic times and places, in order to get by the censor.

Question: You pride yourself on being a “balancer,” as one who compares the social pluses and minuses of restrictions on free speech. Can you be an effective balancer absent a reliable record of the actual or even conjectural harms and benefits of speech? And what if the lawyers, as if often the case, tender no reliable empirical evidence one way or the other? Who wins, where is the conceptual default? Or must the reviewing court do its own research to resolve the question?

Posner: I don’t know how much empirical work has been done on the subject. In its absence, there is just guesswork, although the basic structure of American free speech law seems okay. Some of it strikes me as silly, notably granting rights of free speech to school kids.

[RKLC: 12-12-14: See William Baude’s commentary here.]

Question: Whatever its shortcomings, one of the benefits of a category-based approach to free speech (combined with certain tailoring tools, e.g., overbreath, etc.), is judicial efficiency. The rules are not unworkably open-ended and subjective, and are therefore relatively manageable for judges and lawyers alike.

  1. Mindful of that, how judicially efficient is your economic-based approach with its assorted variables? – e.g., taking into account and balancing the relevant benefits (B), harms (H), offensiveness (O), probability (P), the number of years between when speech occurs and when the harm is likely to materialize, and the administrative costs of a regulation (A).
  2. What about lawmakers, the focus of the First Amendment (Congress shall make no law . . . )? How likely are they to engage in such sophisticated cost-benefit analysis? Is your proposed approach a realistic test for them to employ in considering the constitutionality of proposed laws affecting speech?

Posner:

  1. One can hardly exclude offensiveness, other harms, probability of harm, remoteness of harm, etc. from consideration, any more than you can do that in an ordinary tort case.
  2. Do lawmakers ever do sophisticated cost-benefit analysis?

Question: In cases such as Holder v. Humanitarian Law Project (2010), is the purported harm so great as to preclude any meaningful balancing? It was precisely that concern that prompted Justice Stephen Breyer to complain in dissent: “I believe the Court has failed to examine the Government’s justifications with sufficient care. It has failed to insist upon specific evidence, rather than general assertion.”

How would you weigh in on this? By your standards, was Holder a case of failed balancing?

Judge Learned Hand

Judge Learned Hand

Posner: I haven’t read the case.

Question: You have expressed some conceptual approval of Judge Learned Hand’s opinion in United States v. Dennis (1950) in which he upheld the convictions of eleven Communist Party leaders for violating the Smith Act. Do you agree with the judgment in that case? Please say a few words about why you agree or disagree with the Dennis judgment.

Posner: Hand’s formula in Dennis is I think fine—it is a variant of the famous Hand negligence formula from his opinion in Carroll Towing. The Communist Party leaders were essentially agents of the Soviet Union, so I don’t see why their speech should be thought privileged by the First Amendment.

Question: Don’t phrases like “clear and present danger” (which, by the way, was used by the attorney Benjamin W. Shaw in 1918) invite, as Paul Freund suggested in 1949, a kind of mantra-like application devoid of the kind of realist and pragmatic balancing you endorse?

Posner:  It’s a dumb phrase. A murky remote danger could be very great.

Question: Based on what you know in light of the book you edited on Holmes, did he get the judgments right in Schenck, Frohwerk and Debs?

Posner: Probably not in Schenck or Debs; I don’t recall Frohwerk.

Question: “Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . .”

Do you consider those lines from New York Times Co. v. Sullivan (1964) to be “unpragmatic rhetoric”?

Posner: Empty rhetoric.

 Question: The Rehnquist and Roberts Courts have said relatively little about textualism when it comes to free speech and press issues. Why do you suppose that is?

Posner: There is no text. “Freedom of speech” is a heading, not a test.

Chief Justice John Roberts

Chief Justice John Roberts

Question: The Roberts Court has rendered 36 First Amendment free expression rulings. How would you characterize the First Amendment jurisprudence of the current Court?

Posner: Very nice for fat cats and enemies of abortion.

Question: You have long been on record as being a critic of the Court’s decision in Buckley v. Valeo (1976). You maintain that the “American system of campaign financing is extremely porous and is widely and probably correctly believed to constitute a thinly disguised system of quasi-bribes of elected officials; at the very least it tilts the playing field very steeply toward the wealthy and the well organized . . . .” Given that, how bad in your view have things become in light of rulings such as McCutcheon v. FEC (2014)?

Posner: Very bad.

Question: Do you favor some kind of constitutional amendment to remedy the problems you have identified

Posner: [The idea of a constitutional amendment is] a waste of time.

Posner on Roberts

Can so naive-seeming a conception of the political process reflect the actual beliefs of the intellectually sophisticated Chief Justice? Maybe so, but one is entitled to be skeptical. Obviously, wealthy businessmen and large corporations often make substantial political contributions in the hope (often fulfilled) that by doing so they will be buying the support of politicians for policies that yield financial benefits to the donors. [Source here]

Question: In his dissent in McCutcheon v. FEC (2014), Justice Breyer declared: “the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” What is you view on this idea “collective speech” and the First Amendment?

Posner: A little high-falutin’ for my taste. I would just say that large corporations and wealthy people shouldn’t be allowed to buy elections.

Question: Despite your criticisms of Buckley and its progeny, you have also expressed serious doubts about campaign finance reform proposals. Please explain why you think such efforts are problematic.

Posner: Have I? I don’t recall

Question: In Frontiers of Legal Theory you wrote: “Individuals or groups that have more money than the average amount of money have always had more than the average ability to spend money on trying to influence public opinion. We do not consider such inequality a compelling reason for limiting free speech.” Do you still believe that?

Posner: The mere fact of inequality is not critical. And it would be very difficult for a new candidate to get launched without access to substantial donors. The problems are the concealment of the identity of big donors, the implicit quid pro quo (donor is buying influence, and donee who is not influenced is unlikely to obtain substantial future donations), and the failure to place some ceiling on the amount of donations that a particular individual should be free to make. And I doubt that companies as distinct from individuals should be permitted to make campaign contributions.

Question: As you know, the speech in question in Citizens United involved a political documentary titled Hillary: The Movie. A conservative non-profit group sought to air it within 30 days of the primary. During oral arguments in the case, the question was asked: “What if the particular movie involved here had not been distributed by Video on Demand? Suppose that people could view it for free on Netflix over the Internet? Suppose that free DVDs were passed out. Suppose people could attend the movie for free in a movie theater; suppose the exact text of this was distributed in a printed form.”

 How would you answer that question? Is it your position that showing that political documentary and/or publishing a book on it during an election is not protected speech under the First Amendment?

Posner: The question is the scope of protection. I don’t think the First Amendment should be interpreted to prevent government from limiting the amount of broadcasting (or equivalent, like movies) in the last few weeks before a national election.

Question: What is your view of the secondary effects doctrine as it has been applied by the Court and lower courts since its use in Renton v. Playtime Theatres, Inc. (1986) and then again in Barnes v. Glen Theatre (1991), which overruled an opinion that you authored. In 1988, your former boss, Justice William Brennan, warned that the doctrine “could set the court on a road that will lead to the evisceration of First Amendment freedoms.” Do you agree? Where do you stand on this matter?

Posner: I don’t think there’s anything wrong with it if it is supported by real evidence, though I think it was misapplied in the Barnes case because there wasn’t any evidence that nude dancing promotes crime to any significant extent.

The next installment, the seventh, in the Posner on Posner series was scheduled to be “On Judicial Reputation.” It will now be preceded by a special post on free speech and privacy.  

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On legal education & legal scholarship — More questions for Judge Posner

We should not allow complacency about the American university system to blind us to the weaknesses in legal education.

I am not starry-eyed about the new interdisciplinary legal scholarship. [Even so,] where is it written that all legal scholarship shall be in the service of the legal profession? 

The decline in doctrinal scholarship is relative, not absolute, and perhaps not even relative; all that may be occurring is a shift in the production of doctrinal scholarship toward scholars at law schools of the second and third tier.

Richard Posner (1995)

This is the fifth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, and the fourth one here.  

Richard Posner’s scholarly career in law may have started in 1961-62 when he served on the Harvard Law Review, first as a staff member and then as the President. During that period he published on topics as diverse as a note on the application of international law to outer space (74 HLR 1154), a comment on federal review of state law rulings (74 HLR 1375), a comment patent and antitrust law (75 HLR 602), and a comment on the application of law to religiously owned property (75 HLR). After his clerkship with Justice William Brennan (1962-63 Term) and several jobs with the federal government, he began his professorial career at Stanford Law School in 1969 and thereafter ventured off to the University of Chicago Law School where he is currently a senior lecturer in law. Over the years he has taught antitrust, economic analysis of law, civil procedure, conflict of laws, law and science, evidence, and law and literature.

Screen Shot 2014-12-02 at 2.03.58 PMOne of his articles ranked 64th in the list of the most-cited law review articles of all time. In the field of antitrust law, one his articles (co-authored with William Landes) ranked second in the listings of the most-cited law review articles. (Posner had his own system of rankings.  See here) Even more impressive, as reported by Fred R. Shapiro and Michelle Pears, “[a]s of 2000, Judge Posner was the most often-cited legal scholar of all time with 7,981 citations, nearly 50 percent more than anyone else.”

In the last half-century or so, Posner has published a wide variety of scholarly works in the form of books (40-plus) and articles (300-plus) – perhaps more than any academic writing in the field of American law. In that array of legal literature he has written much on the topic of legal education and legal scholarship. See, for example, the following nine articles by him:

  1. The Present Situation in Legal Scholarship,” 90 Yale Law Journal 1113 (1981)
  2. The Decline of Law as an Autonomous Discipline,” 100 Harvard Law Review 761 (1987)
  3. The Deprofessionalization of Legal Teaching and Scholarship,” 91 Michigan Law Review 1921 (1993)
  4. The Future of the Student-Edited Law Review,” 47 Stanford Law Review 1131 (1994)
  5. William M. Landes & Richard A. Posner, “Heavily Cited Articles in Law,” 71 Chi.-Kent L. Rev. 825 (1996)
  6. Past-Dependency, Pragmatism, and Critique of History in Adjudication and Legal Scholarship,” 67 University of Chicago Law Review 573 (2000)
  7. Legal Scholarship Today,” 115 Harvard Law Review 1314 (2002)
  8. Against Law Reviews,” Legal Affairs, Nov-Dec. 2004
  9. The State of Legal Scholarship Today: A Comment on Schlag,” 97 Georgetown Law Journal 845 (2009)

Below are some questions on the topics of legal education and legal scholarship I posed to the Judge followed by his replies. (Note: Some links will open in Firefox or Chrome but not in Safari.)

 __________________________

Question: What do you think is the single greatest shortcoming of legal education in America today?

Posner: There are several shortcomings; I don’t know how to rank them.

  1. Legal education is too expensive, in part because law school faculties are too large.
  2. Not enough law professors, especially at the elite law schools, have substantial practical experience as lawyers, and
  3. Law school teaching focuses excessively on legal doctrine, to the exclusion of adequate attention to facts, business practices, science and technology, psychology, judicial mentality and behavior, legal practice, and application of legal principles.

Question: Insofar as the teaching of legal ethics is concerned, is teaching the rules of professional responsibility and the cases interpreting them enough in your opinion? Or should some significant attention be devoted to familiarizing law students with some of the great works of the Western Philosophical tradition? – say, to Plato’s Gorgias or Aristotle’s Rhetoric (see here at p. 1924)

Posner:  I don’t consider instruction in legal ethics an important part of legal education. Aristotle’s Rhetoric is pertinent to the rhetorical dimension of legal practice, rather than to legal ethics. Gorgias can be read as critical of lawyers’ tricks, though there were no lawyers as such in fourth century b.c. Athens.

Question:  It has been argued that legal education is akin to learning a form of science. In what ways, if any, does it make sense to speak of the study of law as the study of legal science?

Posner: Law has nothing to do with science. It involves making and applying rules of conduct; the rules are based on legislative and other political decisions, common sense, societal values, judges’ personal preferences, intuition, rhetoric—not logical or scientific rigor.

Question: All things considered, what do you think of calls for reducing law school education to two years?

Posner:  I think that would be fine. A third year might be offered, but as something to be taken after the two-year graduate has spent some time in practice and wants some specialized further training.

Question: In your opinion, how, if at all, has the role of the law school dean changed in the past half-century? And if it has changed, what do you make of it?

Posner: Much more emphasis on fund raising.

Question: In Tagatz v. Marquette University (1988) you noted that tenure “tends to take some of the edge off academic ambition.” What are your views on the current tenure system as it operates in law schools and how, if at all, might you change it?

Posner: Tenure is a form of nonmonetary compensation, hence attractive to universities. The downside is it undermines the work ethic. I don’t know whether the benefits exceed the costs.

Question: (1) What are your views concerning affirmative action and tenure standards when it comes to promoting racial minorities? And do democratic principles justify bending evaluative standards?

(2) Is the problem of race the problem of the evaluative standards that law schools employ? If so, what is the alternative?

Screen Shot 2014-12-07 at 11.45.07 PMPosner:  (1) The only racial minority in the United States that needs affirmative action is the African-American minority. I doubt, though, that African-Americans who have the competence to be considered as law professors need a boost.

(2) I think law schools should give more weight to practical experience in hiring law professors, but I don’t think this relates particularly to African-Americans.

Question: Many years ago you wrote: “not all blacks are culturally black.” Would you a say a bit more about what you meant by that and do you still hold to that view? In answering that question, do you think that one can ever fully escape the consequences of his or her color even if one is, as you put it, an “assimilated black”?

Posner: I’m sure that almost all African-Americans are conscious of and think occasionally about being black—that’s inevitable given history, and it’s the same reason that secular Jews, who may have zero interest in Judaism or Jewish culture, remain conscious of being Jewish. But successful upper-middle-class African-Americans are so much like their white counterparts as not to be preoccupied with the racial difference.

Question: Is Socratic “cold call” method dying in law schools? Or is it already largely dead? If so, is this a good thing? Your views? Read More

Posner
9

The Judge & Company – Questions for Judge Posner from Judges, Law Professors & a Journalist

That’s a sensitive question to put to a judge.

                      – Richard Posner (see below)

This is the fourth in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second one here, and the third one here.

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:

  1. Given the oral argument and the statutory context, why were you so sanguine about the prospects for reversal?
  2. 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.]

Judge Posner:

  1. I wasn’t. I was under the mistaken impression that the Court had voted to reverse.
  2. 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.

Professor Robert M. O’Neil:

  1. Among the Supreme Court opinions to which you made substantial and invaluable contributions, how would you appraise the Philadelphia National Bank (1963) case?
  2. 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?

Judge Posner:

  1. 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.
  2. 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 
Justice William Brennan

Justice William Brennan

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.

III.     Jurisprudence

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):

  1. 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?
  2. 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?

Judge Posner:

  1. 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.
  2. 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:

  1. 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?
  2. 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?

MET-AJ-POSNER-0919Judge Posner:

  1. 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.
  2. 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