Richard A. Posner



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Richard Allen Posner
Judge on the United States Court of Appeals for the Seventh Circuit
Incumbent
Assumed office  1981
Nominated by	Ronald Reagan
Preceded by	Philip Willis Tone
Chief Judge of the Seventh Circuit
In office 1993 – 2000
Nominated by	(Automatic succession)
Preceded by	William Joseph Bauer
Succeeded by	Joel Martin Flaum
Born	January 11, 1939 (1939-01-11) (age 69) New York, NY
Spouse	Charlene

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 in Chicago. He helped start the law and economics movement while a professor at the University of Chicago Law School; he currently serves as a lecturer at the Law School.

Posner is the author of nearly 40 books on jurisprudence, legal philosophy, and several other topics, including The Problems of Jurisprudence; Sex and Reason; Overcoming Law; Law, Pragmatism and Democracy; and The Problematics of Moral and Legal Theory.

Biography

Posner graduated from Yale College (A.B., 1959, summa cum laude), majoring in English, and from Harvard Law School (LL.B, 1962, magna cum laude), where he was first in his class and president of the Harvard Law Review. After clerking for Justice William J. Brennan of the United States Supreme Court during the 1962-63 term, he worked for the Antitrust division of the U.S. Department of Justice. In 1969, he joined the faculty of the University of Chicago Law School, where he remains a senior lecturer and where his son Eric Posner is Professor. He was a founding editor of the Journal of Legal Studies in 1972. President Ronald Reagan appointed Posner to the Seventh Circuit in 1981. He served as Chief Judge of that court from 1993 to 2000.

Posner is a pragmatist in philosophy, a classical liberal in politics, and an economist in legal methodology. A 2004 poll by Legal Affairs magazine named Posner as one of the top twenty legal thinkers in the U.S., along with Dahlia Lithwick and Instapundit.^[1] A prolific author of articles and books on a wide range of topics including the 2000 presidential election recount controversy, President Bill Clinton's affair with Monica Lewinsky and his resulting impeachment procedure, and the 2003 invasion of Iraq, his analysis of the Lewinsky scandal cut across most party and ideological divisions. Posner's greatest influence is 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, 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 he believes Posner will never sit on the Supreme Court because, despite his "obvious brilliance," he has taken a number of positions seen by some as "outrageous" such as his:

• Contention in a 1999 Raritan article that the rule of law is an accidental and dispensable element of legal ideology;
• Argument that buying and selling babies on the free market would lead to better outcomes than the present situation, government-regulated adoption;^[2]
• Tongue in cheek support for the legalization of marijuana and LSD.^[3]

In 2007 his review of Israeli Supreme Court Chief Justice Aharon Barak's book, The Judge in a Democracy caused quite a stir in Israel, renewing debate about judicial activism.^{citation needed}

Legal positions

Judge Posner making a dinner speech at Federal Trade Commission

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,^[4] 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. The lost production is a cost to the company and its workers and, as such, is a social cost. An efficient breach would be a situation in which the benefits are higher than the costs, because 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).

Drugs

He has characterized the U.S.'s "War on Drugs" as "quixotic." In a 2003 CNBC interview, he discussed the difficulty of enforcing criminal marijuana laws and asserted that it is hard to justify the criminalization of marijuana compared to other 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.^[5] 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 [their] 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."^[5]

Torture

When reviewing Alan Dershowitz's book, "Why Terrorism Works: Understanding the Threat, Responding to the Challenge", Posner wrote in The New Republic, September 2002 that "If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used—and will be used—to obtain the information. ... no one who doubts that this is the case should be in a position of responsibility."^[6][7]

Major publications

The following is a selection of Posner's writings.

Selected Books

• 2008. How Judges Think, ISBN 978-0-674-02820-3
• 2007. Countering Terrorism: Blurred Focus, Halting Steps, ISBN 978-0-742-55883-0
• 2007. Economic Analysis of Law, 7th ed., ISBN 978-0-735-56354-4
• 2007. The Little Book of Plagiarism, ISBN 978-0-375-42475-5
• 2006. Not a Suicide Pact: The Constitution in a Time of National Emergency, ISBN 978-0-19-530427-5
• 2006. Uncertain Shield: The U.S. Intelligence System in the Throes of Reform, ISBN 978-0-742-55127-5
• 2005. Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11, ISBN 978-0-742-54947-0
• 2004. Catastrophe: Risk and Response, ISBN 978-0-19-530647-7
• 2003. Public Intellectuals: A Study of Decline, ISBN 978-0-674-00633-1
• 2003. Law, Pragmatism and Democracy, ISBN 978-0-674-01081-9
• 2001. Breaking the Deadlock: The 2000 Presidential Election and the Courts, ISBN 978-0-691-09073-3
• 2001. Antitrust Law, 2nd ed., ISBN 978-0-226-67576-3
• 2001. Frontiers of Legal Theory, ISBN 978-0-674-01360-5
• 1999. The Problematics of Moral and Legal Theory, ISBN 978-0-674-00799-4
• 1998. Law and Literature (revised and enlarged ed.), ISBN 978-0-674-51471-3
• 1996. Law and Legal Theory in England and America, ISBN 978-0-19-826471-2
• 1996. The Federal Courts: Challenge and Reform (2d ed.), ISBN 978-0-674-29627-5
• 1995. Aging and Old Age, ISBN 978-0-226-67568-8
• 1995. Overcoming Law, ISBN 978-0-674-64926-2
• 1992. Sex and Reason, ISBN 978-0-674-80280-3
• 1990. Cardozo: A Study in Reputation, ISBN 978-0-226-67556-5
• 1990. The Problems of Jurisprudence, ISBN 978-0-674-70876-1
• 1988. Law and Literature: A Misunderstood Relation, ISBN 978-0-674-51468-3
• 1981. The Economics of Justice, ISBN 978-0-674-23526-7

Selected articles

• Foreword: A Political Court (The Supreme Court, 2004 Term), 119 Harv. L. Rev. 31 (2005)
• "Transaction Costs and Antitrust Concerns in the Licensing of Intellectual Property", 4 J. Marshall Rev. Intell. Prop. L. 325 (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)
• The Economics of the Baby Shortage 7 J. Legal Stud. 323 (with Elisabeth M. Landes) (1978)

See also

• List of law clerks of the Supreme Court of the United States
• George W. Bush Supreme Court candidates

References

1. ^ "Who Are the Top 20 Legal Thinkers in America?". Legal Affairs. Retrieved on 2007-05-01.
2. ^ Richard A. Posner, The Regulation of the Market in Adoptions, 67 B.U. L. Rev. 59 (1987); Elisabeth M. Landes & Richard A. Posner, The Economics of the Baby Shortage, 7 J. Legal Stud. 323 (1978).
3. ^ Boynton, Robert S. Boynton. "'Sounding Off,' a review of Richard Posner's Public Intellectuals", The Washington Post Book World, January 20, 2002.
4. ^ Richard Posner, The Problematics of Moral and Legal Theory, 111 HARV. L. REV. 1637, 1642-46 (1998) (clarifying his moral positions)
5. ^ ^{a b} Posner-Singer debate at Slate
6. ^ Michael Slackman What's Wrong With Torturing a Qaeda Higher-Up?, New York Times May 16, 2004
7. ^ Philip Hensher Hollywood is helping us learn to love torture, The Independent, June 26, 2007

External links

• Larissa MacFarquhar, "The Bench Burner", The New Yorker, Dec. 10, 2001, pg. 78
• Complete-Review.com's entry on Richard A. Posner
• Complete-Review.com's "Reactions to Richard Posner's Public Intellectuals"
• The Becker-Posner Blog
• Posner's biography
• Posner's Site
• Project Posner
• Lawrence A. Cunningham, Cardozo and Posner: A Study in Contracts, 36 William & Mary Law Review 1379 (1995)
• Soziale Innovation, Eine Serie in brand eins Folge 8: Wohlstandsmaximierung Article in the German economy magazine brand eins 8/2006
• Boldtype.com interview with Richard Posner on his new book, Little Book of Plagiarism
• "Secret trials for terrorists, says US judge", The Australian, June 29, 2007.
• Audio interview with Posner at National Review Online