marta russell
James Farmelant wrote:
> --------- Begin forwarded message ----------
> From: JKSCHW at aol.com
> To: farmelantj at juno.com
> Cc: JKSCHW at aol.com
> Subject: Re: Michael Pugliese <debsian at pacbell.net>: Re: Re: Posner and
> Gates
> Date: Wed, 1 Dec 1999 22:18:56 EST
> Message-ID: <0.6d428034.25773f20 at aol.com>
>
> 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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