A Posner Cerebral Sampler for the Holidays

stock-photo-a-dusting-of-snow-on-pine-boughs-pine-cones-and-red-berries-creates-a-seasonal-bouquet-with-a-167943707What the holidays coming up, I thought some might like to have a Posner sampler of cerebral treats to savor at home, or at work, or as source of discussion at one of those otherwise dreadfully boring holiday parties. For example, after one or two martinis you might lean over to a friend and ask:

  • So, what do you think of the new Posner biography?

Or if you prefer downing Flying Dog brew, you might liven things up a bit by asking:

  • Has anyone seen the video of the First Amendment Salon that Posner did with Geof Stone? And what of the Judge’s views on Dennis v. United States

Or if you have friends over to the house, try gathering around a cracking fire and perking up the conversation with something like:

  • I gather Posner has some serious reservations about the Roberts Court — or is that putting it to kindly?

Then again, you might just want to snuggle up in bed and ponder the latest Posner book, or article, or judicial opinion. Or what about this? — take a Posner book to a high-end hotel bar and wait until some attractive person comes up and starts a conversation with you about that “Posner book you’re reading.” (Yes, it actually happened, and I did not have to wait long.)

So whatever your stripes — liberal, conservative, libertarian, Trumpian, anarchist, nihilist, atheist, etc. — here is a seasonal sampler for you, a little taste of Posner — Richard Posner, that is.

New & Forthcoming

Judge Posner is writing a new book; it is titled Strengths and Weaknesses of the Legal System (Harvard University Press, summer 2017).

→ What Is Obviously Wrong With the Federal Judiciary, Yet Eminently Curable, Part II, The Greenbag (2016) (Part 1 here) Reply: William Baude & Stephen E. Sachs, Originalism’s Bite, Green Bag 2d (forthcoming  20, #1, 2016)

Richard Posner & Eric Segall, Faux OriginalismThe Greenbag (forthcoming vol. 20, #1, 2016) (reply to Baude & Sachs, above)

imagesNew Opinions 

Illinois Transportation Trade Association v. City of Chicago (7th Cir., 2016) (Posner on Uber vs. taxis)

Culp v. Madigan (7th Cir., Oct. 20, 2016) (“So the Illinois law regulating the concealed-carry rights of nonresidents is imperfect. But we cannot say that it is un- reasonable, so imperfect as to justify the issuance of a preliminary injunction.  . .  . The critical problem presented by the plaintiffs’ demand—for which they offer no solution—is verification. A nonresident’s application for an Illinois concealed-carry license can- not be taken at face value. The assertions in it must be verified. And Illinois needs to receive reliable updates in order to confirm that license-holders remain qualified during the five-year term of the license. Yet its ability to verify is extremely limited unless the nonresident lives in one of the four states that have concealed-carry laws similar to Illinois’ law. A trial in this case may cast the facts in a different light, but the plaintiffs have not made a case for a preliminary injunction.”)

Somewhat new but “enticing”: Backpage.com v. Dart (Nov. 2015) (“Nor is Sheriff Dart on solid ground in suggesting that everything in the adult section of Backpage’s website is criminal, violent, or exploitive. Fetishism? Phone sex? Performances by striptease artists? (Vulgar is not violent.) One ad in the category ‘dom & fetish’ is for the services of a ‘professional dominatrix’—a woman who is paid to whip or otherwise humiliate a customer in order to arouse him sexually. See What It’s Actually Like Being A Dominatrix (According To One Dominatrix), www.xojane.com/sex/what-its-actually-like-being-a-dominatrix-according-to-one-dominatrix (visited November 27, 2015) (‘I make a living as a professional dominatrix. . . . I make a living by hitting, humiliating, dressing up, verbally attacking and otherwise fulfilling men’s weird fantasies about being dominated.”); see also Wikipedia, ‘Dominatrix,’ https://en.wikipedia.org/wiki/Dominatrix (visited the same day). It’s not obvious that such conduct endangers women or children or violates any laws, including laws against prostitution.’)

Salon Video: Posner on Free Speech 

Judge Richard Posner & Professor Geoffrey Stone)

Judge Richard Posner & Professor Geoffrey Stone

On May 16, 2016, The First Amendment Salon went on the road again, this time to the University of Chicago Law School. Geoffrey Stone (who serves on the Salon’s advisory board) interviewed Judge Richard Posner. The topic: “The Centrality of the First Amendment.” (Link to video below)

By all measures, it was a quite an evening as Stone engaged the dapper jurist, drawing him out time and again. The result: a rare display of candor on a variety of subjects ranging from the significance of the press clause to the display of confederate flags.

Speaking in measured tones sprinkled with occasional chuckles, Posner seldom held back as the turn of his mind ventured from one provocative thought to another. Stone asked him about everything from the Dennis v. U.S. ruling (RP: correctly decided), to the Pentagon Papers Case (RP: correctly decided), to the wisdom of extending First Amendment protection to Edward Snowden re the release of secret government documents (RP: not much simpatico here).

Along the dialogic way Posner, ever the maverick, occasionally answered Stone’s questions with a question only to have the Chicago professor up the conversational ante to tease out this or that point.

When the time came for questions from the audiences in New York and Washington, D.C. (via teleconferencing), the tenor remained composed yet spirited as the Judge replied with singular frankness concerning topics such as

Sometimes the discussion veered onto other topics such as:

  • executive power in wartime (RP: should be considerable with little or no interference from the courts)
  • the Second Amendment and the individual right to bear arms (RP: critical)

Among other things, Posner also leveled a hearty blow at Roger Taney, this for his 1861 opinion in Ex ParteMerryman in which the Chief Justice took constitutional exception to President Lincoln’s suspension of the writ of habeas corpus. Pure folly by Posner’s jurisprudential measure.

All in all, everyone remained relaxed even as eyebrows raised. It made for a memorable evening. There was, of course more, much more. But I’ll stop there for now, if only because the video is far better.

Video here

unknown9-199x300 The “Provocative” Posner

That is the word used in the New York Times book review of the new biography of Judge Posner by William Domnarski. Here is how John Fabian Witt opened his review: “Once in every great while, nature and nurture combine in a single person the qualities of erratic genius, herculean work ethic and irrepressible ambition. Think of Picasso in art, Ali in boxing or Roth in literature. Add a penchant for provocation untethered to the constraints of conventional human interaction and you get, in the law, Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit in Chicago.”

See David Lat, Interview with William Domnarski, Above the Law, August 25, 2016

Ronald Collins, The Promethean Posner – An Interview with the Judge’s Biographer, Concurring Opinions, December 29, 2015

Posner: “I think the Supreme Court is awful. I think it’s reached a real nadir.”

If you want to read more about why Judge Posner said that, check out his Seminary Co-op Bookstore discussion with Mr. Domnarski and Professor Tom Ginsburg.

Prof. Ginsburg,Judge Posner & Mr. Domnarski

Prof. Ginsburg, Judge Posner & Mr. Domnarski

In a subsequent comment to David Lat over at Above the Law, Judge Posner declared: “I sometimes ask myself: whether the nine current Supreme Court Justices (I’m restoring Scalia to life for this purpose) are the nine best-qualified lawyers to be Justices. Obviously not. Are they nine of the best 100? Obviously not. Nine of the best 1,000? I don’t think so. Nine of the best 10,000? I’ll give them that.”

Posner on Professors (& Professors on Posner) 

 Divergent Paths: The Academy and the Judiciary (Harvard University Press, 2015)

→ Jeff Berkowitz, Video Interview with Judge Posner, Public Affairs, June 1, 2016 (discussing, among other things, Posner’s Divergent Paths) (also: video of Posner’s chambers) (Part 2 here)

University of Chicago Law School: Symposium on Richard Posner’s Divergent Paths: The Academy and the Judiciary, May 3, 2016

Posner on The Blue Book

images Debra Cassens Weiss, Posner says Bluebook is ‘560 pages of rubbish,’ suggests changes to improve jury trials, American Bar Association Journal, March 29, 2016 (“Posner also dislikes The Bluebook. He has his own instructions on citation format, consisting of two pages in an office manual he gives to his law clerks.’The first thing to do,’ Posner writes, ‘is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist, as many do, that the citations in their opinions conform to the Bluebook.'”)

  • David Ziff, The Worst System of Citation Except for All the Others, Journal of Legal Education (forthcoming 2016) (“Even The Bluebook’s harshest critics, such as Judge Richard Posner, rely on The Bluebook’s system of rules much more than they like to admit. . . . Judge Posner . . .  has suggested that ‘[a] week after all the copies of the Bluebook were burned, their absence would not be noticed.’ Provocative. But let’s play the hypothetical forward. To the extent lawyers, judges, students, and academics in a post-Bluebook world endeavored to communicate their references in a reasonable and clear manner, The Bluebook would still exert its influence, because efficient communication requires a baseline of shared understanding among writers and readers. Of course, that shared understanding could be based on a system of rules other than The Bluebook. But some baseline is necessary.”)

Finale: The Complete Posner on Posner


 Ronald Collins, The Complete Posner on Posner Series, Concurring Opinions, Nov. 24, 2015 – Jan. 5, 2015 (12 posts)

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1 Response

  1. Kevin says:

    Prof. Collins, Why no mention of his statements on Korematsu v. United States in the First Amendment Salon with Prof. Stone? Your mouth seemed to be agape.