Posner
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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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Blue Collar Blues

The working class man is a hot topic this month. The publication of Andrew Cherlin’s new book, Labor’s Love Lost, a series of  New York Times articles, and recent Washington Post articles on the middle class  have called more attention to the social and economic plight of the working class man. For thinking conservative men, such as the New York Time’s Ross Douthat and the University of Virginia’s Brad Wilcox, much of that inquiry is focused on the issue of gender: is the move toward “an egalitarian vision of gender roles in parenting and breadwinning” part of the reason for the reinvention of marriage for the elite and of its decline for the working class? And is greater tolerance of non-marital sexuality an essential part of this egalitarian vision? An op ed in the Wall Street Journal this week went even farther to declare that the “biggest culprit” in family breakdown “is feminism’s devaluing of males and the conceit that “strong women” can do it all.”

We are particularly interested in the relationship between economic inequality, gender, and family structure not just because we teach family law, but also because we are often attacked for our claims that family structure – and the legal developments that underlie it — are tied to the economy. But we are bemused by the claims that changes in gender roles are a cause rather than a consequence of the increasing instability of working class families. Instead, we are wondering if the focus on gender isn’t really a distraction – a distraction from the remarkable development taking place in discussions of the family. Now that marriage equality no longer occupies the disproportionate share of national attention, there is something close to consensus taking place. That consensus is that family stability for the working class is unlikely to return without better jobs.

Few serious academics dispute that the disappearance of stable, well-paying jobs for blue collar men has a lot to do with the decline in blue collar marriage and the increased rate of divorce. And few serious academic disputes that cultural changes reinforce the effect. The point of our book, Marriage Markets, was to explain how the law institutionalizes a new model of marriage (the subject of our next blog) and (the focus of this blog) how a changing economy does not just produce less marriage in some straight-line fashion that varies with the latest marginal change in unemployment rates, but rather how it changes the way men and women relate to each other producing reinforcing cycles of gender distrust.

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Welcome to Naomi Cahn

Cahn Naomi 02I am delighted to announce that Professor Naomi Cahn is joining Concurring Opinions to post here on a regular basis.  Naomi teaches at George Washington University Law School, where she holds the Harold H. Greene Chair.  She is involved in book, article, and law reform projects concerning families’ interactions and intersections with the law and gendered institutions, nationally and globally.  Her scholarship and teaching cover the entire lifespan, from pregnancy (and attempts to become pregnant) through death and inheritance.   Her co-authored book with June Carbone, Marriage Markets (OUP 2014),  about the relationship between family structure and marriage, was on the list of best books for 2014 issued by both The Economist and Newsweek.  Other ongoing projects include work on assisted reproductive technology and, with Rev. Amy Ziettlow, a book on elder care.   She has testified before Congress on adoption-related issues and  worked with the Uniform Law Commission to draft model legislation on post-death access to digital assets, and her work has been covered in media outlets ranging from The New York Times to the Wall Street Journal to The Christian Century.

Before joining the GW faculty, Naomi worked at the SEC, legal services, a large law firm, a small law firm, and Georgetown’s  domestic violence clinic.

Her areas of interest include Gender, Feminism, Family Law, International Women’s Rights, and  Trusts and Estates.

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Fusion and the Firm

Lockheed Martin claims it is closing in a fusion reactor. Such claims pop up often enough to be dismissed. Yet as the Economist notes Lockheed Martin is asserting that its design could be viable in 10 years rather than previous claims by others which tended to be 30 years. One random, nice thing about being at GA Tech is that when I first read about the claim, I happened to meet a PhD student who was studying nuclear engineering on the campus tram. He confirmed that the approach is known. He was skeptical but agreed it was promising. And that is where the firm comes in. Apparently Lockheed Martin has gone public, because to get the design to production will require the help of folks outside the firm. The researcher, Dr. McGuire, “thinks his design could deliver a 100MW reactor (able to power 80,000 homes) of about 7 metres in diameter, weighing less than 1,000 tonnes. Indeed, smaller versions might fit on a large lorry.” It may be a pipe dream, and with oil on a free fall, investment in new energy sources may seem less attractive. Still, if the idea is percolating in private and public arenas and the payoff is a clean, less expensive, renewable energy source, that would be amazing. I recall just after President Clinton left office and was on Letterman, he said if he were an oil country, he’d be thinking of energy, not oil, as the industry of the the future. Rather smart insight. Seems others are paying attention, but that works too.

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Original Jurisdiction Practice

Most original jurisdiction cases in the Supreme Court involve dull territorial disputes between states, but the lawsuit filed yesterday by Nebraska and Oklahoma against Colorado is anything but.  The claim is that Colorado’s legalization of marijuana violates federal law and is an “interstate nuisance,” which is some sort of new federalism theory.

Here’s my question.  If the Court dismisses this action as not falling within its original jurisdiction, can it do that with a simple order (like a certiorari denial), or is an actual opinion required?

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“The Interview” and Eminent Domain

Personally I hope that the NSA figures out a way to knock North Korean State TV off the air.  In the meantime, though, the United States should exercise eminent domain and buy the movie from Sony as a partial compensation for its loss.  Then the Administration should make the movie freely available with dubbing and commentary in as many languages as possible.

I’m disturbed to hear some discussion in the vein of “Oh, it looks like a terrible and offensive movie, so why should we stir up a hornet’s nest by going after the hackers?”  Major free speech issues often involve unsavory expression–who cares about whether “The Interview” is up for any Oscars?  I don’t expect a principled stance from a corporation, but I do expect one from public officials and citizens.

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Child Safety, Part III

How might tort law respond, if at all, to the preferences of parents and the general population to invest about twice as much in child safety as adult safety? (see this post for a summary of the data, and this post for a discussion of whether those preferences are normatively defensible).

Here’s my take, which you can read more about here:

Because the studies that I’m drawing from concern the allocation of safety-related resources, they have their most direct implications when we view tort law as (at least partially) a means to make people safer by deterring risky behavior. Those studies create two main implications, one for levels of care and one for damages.

Under a deterrence rationale, the standard of care in tort law reflects what we want potential tortfeasors to invest in accident prevention. The investment patterns from my first post in this series suggest that, at least as a prima facie matter, people want potential tortfeasors to invest twice as many resources in preventing accidents when children are the primary potential victims, even when both children and adults are equally vulnerable.  And if my second post in this series is right, we have reasons to respect those preferences. So when children are among the foreseeable class of victims, courts should require a heightened level of care. Although courts appear to respond to a child’s increased vulnerability to harms—they blindly run out into the street to reach ice cream trucks, for example—I have not found evidence that courts have picked up on the extra value that we appear to place on child safety. I’ve also looked at practitioner treatises, and so far I cannot find any mention that courts or juries are more likely to find a defendant negligent if the victim was a child. So, as a prima facie matter, there are reasons to question whether judges and juries are applying a sufficiently stringent level of care in cases involving children.

To motivate potential tortfeasors to take a heightened level of care for children, damages for child victims should be about twice as high as damages for adult victims. Currently, tort damages tend to exhibit child discounts or mild child premiums. This should not be a surprise. We ask juries to set damages in particular ways that constrain their discretion. For wrongful death, we generally ask them to set damages by looking at the economic contributions that the decedent would have made to her relatives. This puts a very small value on dead children, and results in child discounts even after we add non-economic damages. For permanent injuries, some back-of-the-envelope calculations suggest that juries tend to award children 20-25 percent more than adults. This is approximately what we would expect if juries were awarding damages based on the number of years that a victim will have to live with her injuries, and then discounting those future yearly payouts to arrive at a single lump sum.   But that child premium is significantly lower than the 2 to 1 ratio that a deterrence-oriented tort system might strive for. So, as a prima facie matter, there are reasons to question whether damages for child victims are high enough to generate the amount of deterrence that people appear to desire.

Of course, there is much more to say.

A fuller deterrence analysis would require examining a host of additional factors, such as whether regulatory agencies or market forces or the threat of criminal liability already provide extra protection for children, whether risk compensation or substitution effects operate differently for the adult and child populations, the differences between contractual settings like medical malpractice and stranger cases, how to handle “hidden-child” cases (which would be partially analogous to thin-skull cases), etc. I invite readers to offer their thoughts on these issues. But as a first cut, there are reasons to think that tort law does not offer the desired mix of protection for adults and children.

We could also ask what civil recourse and corrective justice accounts of tort law might contribute to the discussion. But I will leave that for another day.

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Yahoo! and YouTube

Mozilla switched to using Yahoo! for its search engine, and so I noticed something about how it shows YouTube results; something that may upset YouTube aka Google. When I was writing about lightsabers and 3D printing, I wanted to embed a clip from Return of the Jedi. The search on Yahoo! showed me a potential clip. I hit play to confirm that. It was good for my needs. I looked for the embed code, and it wasn’t there. There was a share button up top, but for the full page and codes, I had to go to the YouTube page. Now that is what happens when one embeds a YouTube video. But I wonder whether YouTube posters will be upset (or maybe even YouTube/Google) to find that a rival search engine maybe undercutting them. For example, it seems, I stress seems as I ran only one test, that a YouTube video that has an ad before a video lacks that ad when on Yahoo! Banner ads seem to be present on both, but they differ. I am guessing Google gets to serve those and maybe they vary depending on where the video is served. That would make sense given the targeting should vary depending on where the video is shown. Still if Yahoo! is taking content and showing it on its site, perhaps making money that way too (or at least keeping it from the Goog), will we see a replay of the early Internet cases on framing, diversion, etc., but with Google as the plaintiff? If so, is that an ironic moment where some folks will be saying Google just got Googled (i.e., I am thinking certain industries see being “Googled” as something other than being searched for; hey that may show that the whole genericisim question is less of an issue.).

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Hello Stigler: Google Trusted Stores, Amazon, and Price Discrimination

Hello, Stigler. Matchmaking and advertising are Google’s forte. It has upped its game. Never to leave things as they are, Google has been rolling out a trusted vendor system. I noticed the service for a company that I cannot recall. Not a good sign for the company, but then again I don’t notice Amazon third parties either. If Google can use algorithms and other options such as requiring applications by vendors to be part of a trusted network of retailers, that change could be huge. There are, however, some issues.

First, Amazon should keep an eye on this program as it might be the first one to challenge Amazon’s excellent third party system. For that to be a true threat, Google will have to find a way to protect customers. Amazon has been great, in my experience, when it comes to protecting me while I deal with sellers far away and sometimes dubious. It does not give away my credit card etc. So if a lemon is in play, Amazon covers me. I assume it takes a fee for being the broker. Google customer service may have to evolve, if it is to match Amazon. A series of online, automated loops that end up hitting walls will make me stay with Amazon. But as Google gets better at identifying good sellers and protecting consumers, the service may work well. In addition, the play should feed into Google’s foray into ecommerce. Again if it can aid in delivery and resolve poor third party service, Google could do quite well in this space.

Second, will search results be influenced by participation in the program? On the one hand, I’d love results that lead to better sellers. Heck if Amazon or eBay ratings figured into Google results and improved knowing whether an ad or listed result was trust-worthy, that’d be great. Then again, right or wrong, I expect Google watchers/haters/worriers will argue that Google has promoted results unfairly. As long as a company can go through certification, it seems that argument should fail. I imagine Amazon, eBay, and others require some level of clearance to be in their system. Regardless of purveyor, it seems systems that are relatively low-cost (or maybe free except for time to fill out forms) to join and then are monitored should be embraced. In other words, Yelp etc. are near useless to me. Crowds are not as smart as folks think. As the great agent Kay in Men in Black said, “A person is smart. People are dumb, panicky dangerous animals and you know it.” More ways to improve how each of us, separately, evaluates options would be welcome, and plays to the way we each are capable of being smart. Options that limit us and feed echoes of dubious sources, behaviors, and beliefs, I’d like to avoid.

So we’ll see whether Google can one-up Amazon in connecting buyers and sellers. If so, I may buy more LPs and who knows what from folks I will never meet. And prices should be more competitive. Of course, that will be so until Christmas hits. Then as happened this year, prices may go up. But hey, Amazon listed the MSRP and connected me to a retailer whose markup combined with Amazon shipping worked for a gift to my niece. That was great. Wait, did I just agree with perfect price discrimination?!!? Damn, you Goog! and Amazon! Or is that Happy Holidays! I got what I wanted without fighting through stores.

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Million Dollar Reward Case Over

aaa millionA claim to $1 million for meeting a lawyer’s dare made on Dateline NBC is now dead. The case is over thanks to an opinion, by Judge Wilson for the 11th Circuit, that will be in the next editions of all Contracts casebooks: it  provides a comprehensive, careful and contestable treatment of unilateral contracts.

Former law student Dustin Kolodziej filed the case in 2009 against high-profile Florida defense lawyer, James Cheney Mason.  Prosecutors said Mason’s client, a wealthy businessman on trial for  murdering his business partner and others, manufactured an alibi putting him in a La Quinta hotel in Atlanta on the day of the Central Florida murders.

On Dateline NBC, Mason explained his defense, that the state could not show that the trip they imagined the defendant took was possible within the time frame.  A vital leg of the journey involved getting off a plane at Atlanta’s busy airport to the hotel five miles away, in less than 30 minutes, where the defendant was seen in security tape early and late in the day.

Mason said he’d pay $1 million if proven wrong.  Kolodziej did just that,  reenacting the full trip, capturing it on his camcorder, and making the final leg in less than 30 minutes.    Kolodziej claimed a valid contract, formed by Mason making an offer of a reward for an act and Kolodziej accepting it by performing the act.   Mason called the claim ridiculous.

The case raises a classic issue in contract law, about whether dares to be proven wrong like this are recognized as offers or mere bluffs and jests.  The 11th Circuit, affirming a grant of summary judgment, sided with Mason.  Stressing context,  not only was his bluster about the million a joke, the full text of what he said makes clear he was daring the prosecutors to prove the point, not the general public.

Dave Hoffman correctly predicted this outcome–nice job Dave (here and here)! I thought the case a closer call, as I explained  here and in my book, Contracts in the Real World: Stories of Popular Contracts and Why They Matter (Cambridge U Press 2012).

While I am persuaded by Dave and the 11th Circuit’s opinion, I remain convinced that Mason was wrong to call the claim ridiculous.  The court takes the claim more seriously, to its credit, though I wish they had engaged more with the arguments  put forth in my book (which, alas, the court does not cite).

Hat tip to Jim Gross, currently clerking for the 9th Circuit, who wrote to remind me that we discussed this case on his first day of Contracts class at GW back in 2011.  Hat tip also to David George, the lawyer for Kolodziej, who also sent me a copy.