In a message dated 12/1/99 3:05:56 PM Eastern Standard Time, farmelantj at juno.com writes:
<< Posner is damn prolific, pieces in The New Republic and National =
Review pretty frequently. Tons of books, "Sex and Reason,"(!!!) and one =
on impeachment that just came out.
Just checked at amazon.com, the guy has over a dozen books at least. =
Anybody in law school or
a law school professor, on lbo list, to summarize Posner and the law and
=
econ folks to us non-lawyer types? >>
Jim, you can post this to LBO. in fact, send me the sign-on message and I'll sign up again.
I was a judicial law clerk on the Seventh Circuit last year for Judge Walter Cummings and then for Judge Ilana Rovner. My office was next to Chief Judge Posner's, so apart from being pretty familiar with his judicial opinions and scholarly writings, I know him personally moderately well. He's not easy to summarize. He's extraordinary brilliant, seeing points in a moment that take other people years. He writes fluently and well, sometimes glibly, but not nearly as glibly as you'd expect for someone who writes as much as he does. He writes all his own opinions, which is unusual for judge; only two other judges of the 7th Cir. do that as far as I know. This is in addition to a
book a year and heaps of scholarly articles. Posner is a Republican, a Reagan appointee, but not doctrinaire. He thinks things through himself and you cannot tell where he is going to come out. I think he is a fine judge as a judge, apart from his scholarly attainments. Certainly his opinions are a
delight to read, as opposed to the usual product. He can be nasty to litigants.
As far as the "econ and law" stuff goes, there are really two Posners. One is a widely read, cultivated, funny scholar of broad humanistic learning who can write lots of interesting stuff about law and literature, including literary criticism on Homer or Kafka, discussions of Icelandic society in the middle ages or the silliness of repressive sex laws--anything that crosses his mind. In the area I was trained before I became a lawyer, analytical philosophy, Posner can hold his own with the professionals. Wearing this hat he is America's leading legal theorist of pragmatism, which makes him a good guy in my book. I can read several hundred pages of this Posner at a stretch without finding anything on which I have serious disagreements.
Then there E&L, an approach to law which Posner is in no small part responsible for, which helped him attain the heights he now commands, but
which occupies a much smaller part of his horizon than it might seem in the minds of the educated public. The economic analysis of the law is not easily summarized--Posner has a book on it (surprise!). Basically it involves analyzing legal problems about what rule to adopt or to apply in a case from the perspective of mainstream economics and choosing the rule that promotes efficiency as mainstream economists understand the notion. Some writers, not so much Posner, argue that this is what judges in fact do. Posner argues that in broad classes of cases--contracts, torts, antitrust, it is what they should do.
So far so good, maybe: there are areas where this is a sensible approach,
e.g., corporate law. Maybe antitrust, although I can argue the other side
there too. The problem is of course economic imperialism, the inappropriate application of economics to kinds of cases where it doesn't belong or the
swallowing up of noneconomic concerns about justice (for example) in the economic analysis. (E&L might be looked at as vulgar Marxism for the right wing, a sort of economic reductionism.) Posner has advocated--in theory--a very imperialistic extension of E&L, has written a book called Sex and Reason, for example, applying economic analysis to sex in ways that are clever, shocking, and wrong. He notoriously defended the proposition that the good to be maximized in economic analysis is wealth-maximization, never mind about maldistribution. There's an argument that the market will fix maldistribution, but never mind that.
This is all academic theory, good clean fun in the journals. Mostly it does not infect Posner's interpretation of the law in his opinions and it does not get in the way of his real contributions to humane learning. It has a harmful effect in legitimating rigidities that Posner is not susceptible to in the work of lesser judges and scholars.
Justin Schwartz, Esq. --------- End forwarded message ----------
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