While you are right to criticize the existing state regulations of what counts as "normal" households fit for adopting children & class & other ideological biases implicit in them, what is your alternative? Better regulations? If so, what regulations? Or no state regulation & the "free market" in adoption?
What do you think of Richard Posner?
***** Lingua Franca Volume 10, No. 4 - May 2000
The Outrageous Pragmatism of Judge Richard Posner
By James Ryerson
with updates by the author
In October 1997, Judge Richard Posner gave the prestigious Oliver Wendell Holmes lectures at Harvard Law School. He used the occasion to launch a bruising attack on the members of his audience and their pretensions to virtue. "Academic moralists," he tartly proclaimed, "pick from an à la carte menu the moral principles that coincide with the preferences of their social set." With considerable aplomb, he proceeded to accuse the nation's leading moral and legal philosophers of hypocrisy and worse: "They have the intellectual agility to weave an inconsistent heap of policies into a superficially coherent unity and the psychological agility to honor their chosen principles only to the extent compatible with their personal happiness and professional advancement."
Slighted and vexed, several scholars from the ranks of moral philosophy, legal scholarship, and the judiciary responded to Posner in a subsequent issue of the Harvard Law Review. The liberal legal philosopher Ronald Dworkin charged that Posner's talk contributed to "a populist antitheoretical movement that is now powerful in American intellectual life." The University of Chicago philosopher and classicist Martha Nussbaum called it "an occasion for sadness." Charles Fried, an associate justice of the Supreme Judicial Court of Massachusetts and solicitor general under former president Ronald Reagan, said that Posner's harangue was "too gross and unnuanced to dispose of the arguments he seeks to refute," though with his rhetorical skills he presumably "made converts."
Provocation comes naturally to Posner. Like his hero Oliver Wendell Holmes, whom he has called the "American Nietzsche," Posner has sought to combine the roles of intellectual gadfly and authoritative lawgiver. The object of scholarly envy and awe, he is the chief judge of the United States Court of Appeals for the Seventh Circuit and was the court-appointed mediator for the Microsoft antitrust case. Anthony Kronman, the dean of the Yale Law School, considers the "law and economics" movement that Posner has pioneered to be the most influential development in the last two decades of legal scholarship. The author of thirty books and more than fifteen hundred judicial opinions (which he writes himself), he is the most frequently cited American legal scholar alive.
And yet for all his visibility and near superhuman productivity, Posner is maddeningly hard to pin down. At sixty-one, he is quiet, calm, and courteous, with a measured style of speech; he expresses his often incendiary opinions in an unhurried, almost blasé manner. The best description of his political views may be "eclectic libertarian," but even that label doesn't capture the quirky cast of his thought. On his conservative side, he is a Reagan-appointed judge who warns against market regulation and wealth redistribution. He professes distaste for the student riots and antiwar demonstrations of the 1960s, which he characterizes as an "anarchic outburst." He puts a good deal of stock in current theories of evolutionary psychology and sociobiology, believes that the exclusion of women by the Virginia Military Institute was not plausibly an instance of "sex subordination," and agrees with Supreme Court justice Antonin Scalia that "people who look to the courts for social reform do not take democracy completely seriously."
That said, Posner seems to make a point of infuriating conservatives. In a December 1999 New York Times Book Review article, he roundly criticized neoconservative Gertrude Himmelfarb's jeremiad One Nation, Two Cultures, warning that "unless we want to go the way of Iran, we shall not be able to return to the era of premarital chastity, low divorce, stay-at-home moms, pornography-free media and the closeting of homosexuals and adulterers." As a self-styled pragmatist, he most closely resembles, in his philosophical views, such betes noires of the right wing as Stanley Fish and Richard Rorty. In the fall 1999 Raritan, he casually dismissed the hallowed notion of "the rule of law" by noting that it is "an accidental and readily dispensable element of our legal ideology." His books are enthusiastically blurbed by liberals, he is the highest-ranking American judge to have publicly advocated the legalization of marijuana, and he resists nostalgic views of a more stately, less rapacious American legal profession, claiming that "the bar in the 1950s was a regulated cartel."
Posner's work may be elusive in its implications and almost absurdly wide ranging in subject matter, but it is also largely unified in method. Since 1988, he has written books on sex, old age, literature, and AIDS. Yet for all his enlightened dilettantism, the discipline of economics, as he put it in Aging and Old Age (1995), "wields the baton of my multidisciplinary orchestra." He believes firmly in the ability of rational choice theory - the economic model of appetitive, self-interested human behavior - to dispel the myths that cloud other disciplines. In Sex and Reason (1992), for instance, he described prostitution as a "substitute for marriage," since married couples compensate each other for services with other services, while prostitution is simply a case of those same services being traded for ready money. Typically erudite, syncretic, and hard-nosed, Aging and Old Age was inspired by a quotation from Aristotle's Rhetoric - "youth has a long future before it and a short past behind it" - in which Posner saw the glimmer of cost-benefit calculation.
To his admirers, this is classic Posner: the impossibly well-read, mind-bogglingly prolific Renaissance judge; the forthright, courageous, and accurate critic of all that is soft and imaginary in legal and social thought; and the economic wizard who captures the complexity of human beings by teasing out their crude self-interests. To his detractors, however, Posner's work reveals considerably less: a gifted but wayward mind, given to reductive, simple minded analysis of the variegated human experience, seduced by a cynical narrative of power and survival; a dogmatic, heartless, calculating machine in pursuit of cold-blooded efficiency; a "fetishist," as Dworkin once put it, "of little green paper."
To the delight of his fans and the dismay of his critics, Posner published two especially controversial books last year: The Problematics of Moral and Legal, an expanded version of his 1997 Holmes lectures; and An Affair of State: The Investigation, Impeachment, and Trial of President Clinton. Both advance audacious arguments with great confidence. An Affair of State has attracted the lion's share of attention in the media for its assertion that the president was clearly guilty of perjury - in The New York Review of Books, Dworkin even accused Posner of possibly violating the Code of Conduct for United States Judges by commenting publicly on "pending or impending" cases.
But Problematics has struck many insiders as the more revealing document in the often perplexing archive of Posner's worldview. Certainly his condemnations of moral philosophy are passionate. "I hate the moral philosophy stuff. It is theology without God," he says bluntly. "I don't like theology with God, I don't like theology without God. It's preachy, it's solemn, it's dull. It's not my cup of tea at all." Jules Coleman, a Yale law professor, feels Problematics is crying out for some sort of deeper explanation: "It's a multipronged, migraine headache-inducing attack on moral philosophy. It's so vehement, and it comes from so many different angles, that you feel like applying appropriate social science to the investigation of it - namely, what's going on inside this guy's head?"
Born in New York City in 1939, Posner grew up in the city and its suburbs. His mother was "stridently left-wing," he says, and had many radical friends, including the couple who adopted the children of Julius and Ethel Rosenberg. In fact, as a youngster, Posner gave away his train set to the Rosenbergs' children, Michael and Robby. Posner's father was a lawyer, and, growing up, Posner "always had it in the back of my mind that I might end up being a lawyer," though he majored in English at Yale. After graduating in 1959, he went on to Harvard Law School, became president of the Harvard Law Review, and finished first in his class. In 1962, he went to Washington, D.C., to clerk for a year with the great liberal Supreme Court justice William Brennan.
Though he was a self-described "standard liberal type" at the time, Posner remarks that "if I had been picked to clerk for a conservative judge - that would have been Harlan then - that would have been fine also. I wasn't any kind of zealot." During his clerkship, Posner showed early hints of his gifted legal mind. On one occasion, he mistook Brennan's instructions, and drafted an opinion arguing the exact opposite of what Brennan had intended. Posner's statement was so persuasive that Brennan and his colleagues changed their minds and signed it.
If Posner had defining enthusiasms as a young law clerk, they were economic ones. He discovered his interest in the intersection of economics and the law while cite checking an article on merger law and then while working on a major antitrust case with Brennan, United States v. Philadelphia National Bank (1963). He left his clerkship to spend two years at the Federal Trade Commission, followed by two years working for Thurgood Marshall in President Lyndon Johnson's solicitor general's office. "My last job in Washington," Posner recalls, "working on the staff of a telecommunications task force, was very economics-intensive, so by the time I started teaching, I did think I was going to do law and economics. I don't think it was even called that then, but I did want to apply economics to the law."
One reason that law and economics wasn't known by name at the time was that Posner hadn't made it famous yet. The movement, which treats the law primarily as a tool for ushering markets along, did have a few forerunners, including the conservative judge Learned Hand and the economist Ronald Coase. But no concerted effort to fuse the two disciplines emerged until the 1970s, when Posner was a law professor at the University of Chicago, cradle to American economic thought from Thorstein Veblen to Milton Friedman to Gary Becker. He published a number of influential books in that period, including Economic Analysis of Law (1973; now in its fifth edition), Antitrust Law: An Economic Perspective (1977), and The Economics of Justice (1981). The decade's political movements in favor of privatization and deregulation found their conceptual counterpart in Posner's books.
The law and economics movement began from the observation that in a perfectly free market, every deal advances the interests of both its parties; otherwise, someone would opt out. Furthermore, since both parties gain something of greater value to them through the transaction, the total amount of social wealth increases. On the strength of those insights, Posner suggested that common law - the judge-made body of decisions that governs tort, property, and contract law - can be understood as a tool for promoting social wealth. A law that interferes with free bargaining will draw challenges in the courts, since it constrains people from buying and selling as they wish and thus from advancing their interests. On the other hand, a law that does not obstruct free bargaining will remain on the books, season, and become precedent.
>From these premises, Posner drew some provocative conclusions. When
deciding truly novel cases, judges should not think of their task as
preventing harm by honoring rights, but rather as distributing rights
and harms in the same way that a free market would have done. For
instance, rather than making slippery arguments about which party to
a property dispute has an abstract claim to the contested goods, a
judge ought to determine which party would have acquired the right to
the property by bargaining for it in a perfectly free market. When
judges distribute rights in the way that an ideal market would, they,
like the market, are maximizing total social wealth.
Posner further argued that legislators should be concerned principally with protecting people's ability to bargain freely, and not with redistributing wealth. Indeed, from the law and economics standpoint, redistribution actually decreases total social wealth, since it takes something from those who value it and puts it in the service of those who, not having transacted for it, will not feel the market pressures to wring the most efficient use out of it.
These were bold, politically charged proposals, and they infuriated many liberals and leftists in the academy. In 1980, the Harvard legal historian Morton Horwitz predicted in the Hofstra Law Review that "the economic analysis of the law has 'peaked out' as the latest fad in legal scholarship." Over the next twenty years, however, Horwitz's prediction proved stunningly wrong. Virtually every major law school today has a program in law and economics, as well as an economist on the faculty. And although Posner was never able to convince the legal academy that economics explains the history and hidden logic of the law, he and many other legal scholars, including his Chicago law school colleague Richard Epstein, maintain allegiance to the idea. Certainly the policy suggestion that the law ought to promote greater economic growth is very much alive. "There have been a lot of faddish movements in the law," Posner says. "Critical legal studies, postmodernism, critical race theory. Some leave little deposited insights; they directed our attention to aspects or perspectives that we hadn't seen." But, he notes with satisfaction, "only law and economics has had real staying power."
The staying power has not been merely academic. Antitrust law, for instance, stands as the shining example of success to proponents of law and economics. In the early days of the Sherman Antitrust Act (1890), Posner points out, the "very goal of antitrust policy was obscure and contested - was it to promote economic efficiency or to reduce the power of big business? It is hard to do both." With a few exceptions, antitrust law until the 1970s was driven by what Posner calls "populist" sentiment about the inherent evil of bigness, rather than by any empirical understanding of whether specific legal decisions actually improved economic efficiency. But with the rise of law and economics in the 1970s and the Reagan revolution of the 1980s, antitrust law effectively became a branch of applied economics, and economic efficiency became the only widely accepted goal of antitrust efforts. "On its frontiers, the law and economics movement looks wacky," concedes Harvard law professor and cyberlaw expert Lawrence Lessig, who clerked for Posner from 1989 to 1990, "but this is the nature of a frontier, not the movement.... We are all law-and-economists now."
Unsurprisingly, Posner's conservative economic views caught the eye of President Reagan, who nominated Posner to the bench in 1981. In retrospect, Posner was probably lucky to have been nominated so early in Reagan's term. "I think I was the second nominee to the federal courts of appeals by Reagan and the first professor," he remembers. "So it wasn't yet realized that he was trying to fill up the bench with conservative professors." Nor was it likely that the senators realized that in the Journal of Legal Studies, Posner had discussed buying and selling babies on the free market in lieu of government-regulated adoption, or that he had argued that the archetypal antitrust infraction of predatory pricing rarely, if ever, exists. Without having to pass through Borkian rings of fire, Posner took his seat on the bench, though he continued to teach a partial course load at Chicago and to write book after book elaborating his economic approach to the law. There was only one sticking point: How could such a radical thinker function as a responsible judge?
As ambitiously technocratic as Posner's law and economics program may seem, his practice of judging has a more commonsensical, pragmatic bent....
[The full article is available at <http://www.linguafranca.com/0005/posner.html>.] *****
Yoshie