Richard Posner

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Richard A. Posner
Richard A. Posner

Richard Allen Posner (born January 11, 1939 in New York City) is currently a judge on the United States Court of Appeals for the Seventh Circuit. He is a major voice in the law and economics movement, which he helped start while a professor at the University of Chicago Law School.

Posner is the author of dozens of books on jurisprudence and legal philosophy, including The Problems of Jurisprudence; Sex and Reason; Overcoming Law; Law, Pragmatism and Democracy; and The Problematics of Moral and Legal Theory.

Contents

[edit] Biography

Posner attended Yale College (A.B., 1959, summa cum laude) and Harvard Law School (LL.B, 1962, magna cum laude) where he was president of the Harvard Law Review and graduated first in his class, thereafter clerking for Justice William J. Brennan of the United States Supreme Court during the 1962-63 term. He joined the faculty of the University of Chicago Law School in 1969, where he remains a senior lecturer and where his son Eric Posner is a law professor. President Ronald Reagan appointed Posner to the Seventh Circuit in 1981. He served as Chief Judge of the court from 1993 to 2000.

A 2004 poll by Legal Affairs magazine named Posner as one of the top twenty legal thinkers in the U.S. He has a reputation for prolific publication of articles and books on a diverse number of topics including the 2000 presidential election recount controversy, the Monica Lewinsky scandal and resulting impeachment of President Bill Clinton, and the 2003 invasion of Iraq. His analysis of the Lewinsky scandal cut across most party and ideological divisions. Posner has realized his greatest influence through his writings on law and economics — The New York Times called him "one of the most important antitrust scholars of the past half-century". In December 2004, Judge Posner started a joint blog with Nobel Prize-winning economist Gary Becker.

Posner was mentioned in 2005 as a potential nominee to replace Sandra Day O'Connor because of his prominence as a scholar and an appellate judge. Robert S. Boynton has written in The Washington Post that Posner will never sit on the Supreme Court because, despite his "obvious brilliance," his positions are occasionally perceived as "outrageous." Boynton cites as examples Posner's contention in a 1999 article in Raritan that the rule of law is an accidental and dispensable element of legal ideology, his argument in favor of buying and selling babies on the free market instead of government-regulated adoption, and his views in favor of legalizing marijuana and LSD. [1]

[edit] Legal positions

Posner's political and moral views are hard to summarize. His parents were affiliated with the American Communist party, and in his youth and in the 1960s as law clerk to William J. Brennan he was generally counted as a liberal. However, in reaction to some of the perceived excesses of the late 1960s, Posner developed a strongly conservative bent. Today, although generally considered a man of the right, Posner's pragmatism, his qualified moral relativism and moral skepticism, and his affection for the thought of Friedrich Nietzsche set him apart from most American conservatives. Among his other influences are the American jurists Oliver Wendell Holmes, Jr. and Learned Hand.

Privacy

He famously opposed the right of privacy in 1981, arguing that the kinds of interests protected under privacy are not distinctive. He contended that privacy is protected in ways that are economically inefficient.

Abortion

He has written several opinions sympathetic to abortion rights, including a decision holding "partial-birth abortion" constitutionally protected in some circumstances.

Breach of contract

He has written favorably of efficient breach of contracts. Breach often leads to a worse result for society: if a seller breaches a contract to deliver building materials, the buyer's workers might go idle while the buyer looks for a replacement. That lost productivity lowers society's net worth. An efficient breach would be a situation in which the gains are higher than the losses, and the seller is better off for breaching even after paying damages to the buyer (for instance, if some third party had a much greater need for the building materials, and was willing to pay a higher price for them).

War on Drugs

He has characterized the U.S.'s War on Drugs as "quixotic." In a 2003 CNBC interview, he discussed the difficulty in enforcing criminal marijuana laws, and asserted that it is hard to justify the criminalization of marijuana compared to other comparable substances.

Animal rights

Posner engaged in a debate on the ethics of using animals in research with the philosopher Peter Singer in 2001 at Slate magazine. He argues that animal rights conflicts with the moral relevance of humanity, and that empathy for pain and suffering of animals does not supersede advancing society. [2] He further argues that he trusts his moral intuition until it is shown to be wrong, and that his moral intuition says "it is wrong to give as much weight to a dog's pain as to an infant's pain." He leaves open the possibility that facts on animal and human cognition can and may change his intuition in the future; he further states that people whose opinions were changed by consideration of the ethics presented in Singer's book Animal Liberation failed to see the "radicalism of the ethical vision that powers your view on animals, an ethical vision that finds greater value in a healthy pig than in a profoundly retarded child, that commands inflicting a lesser pain on a human being to avert a greater pain to a dog, and that, provided only that a chimpanzee has 1 percent of the mental ability of a normal human being, would require the sacrifice of the human being to save 101 chimpanzees." [2]

[edit] Major publications

The following is a selection of Posner's writings.

[edit] Selected Books

  • 2006. "Uncertain Shield: The U.S. Intelligence System in the Throes of Reform", ISBN 0-7425-5127-X
  • 2006. Not a Suicide Pact: The Constitution in a Time of National Emergency, ISBN 0-19-530427-6
  • 2004. Catastrophe: Risk and Response, ISBN 0-19-517813-0
  • 2003. Law, Pragmatism and Democracy, ISBN 0-674-01081-7
  • 2002. Public Intellectuals: A Study of Decline, ISBN 0-674-00633-X
  • 2002. Economic Analysis of Law, 6th ed., ISBN 0-7355-3474-8
  • 2001. Breaking the Deadlock: The 2000 Presidential Election and the Courts
  • 2001. Frontiers of Legal Theory
  • 1998. Law and Literature (revised and enlarged ed.)
  • 1996. Law and Legal Theory in England and America
  • 1996. Overcoming Law, ISBN 0-674-64926-5
  • 1996. The Federal Courts: Challenge and Reform (2d ed.)
  • 1995. Aging and Old Age
  • 1995. Overcoming Law
  • 1992. Sex and Reason, ISBN 0-674-80280-2
  • 1990. Cardozo: A Study in Reputation
  • 1990. The Problems of Jurisprudence
  • 1988. Law and Literature: A Misunderstood Relation
  • 1981. The Economics of Justice"

[edit] Articles

  • Foreword: A Political Court (The Supreme Court, 2004 Term), 119 Harv. L. Rev. 31 (2005)
  • Pragmatism Versus Purposivism in First Amendment Analysis, 54 Stan. L. Rev. 737 (2002)
  • The Problematics of Moral and Legal Theory, 111 Harv. L. Rev. 1637 (1998)
  • Statutory Interpretation - In the Classroom and in the Courtroom, 50 U. Chi. L. Rev. 800 (1983)

[edit] Notes

  1. ^ Boynton, Robert S. Boynton. "'Sounding Off,' a review of Richard Posner’s Public Intellectuals", The Washington Post Book World, January 20, 2002.
  2. ^ a b Posner-Singer debate at Slate

[edit] External links

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