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Richard
Posner is an important legal authority. He
is the leader of the school of lawyers that seeks to resolve disputes in the
most economically efficient way. Much
of his thinking derives from the work of Ronald Coase, for which click here.
The following interview first appeared in the New Yorker.
The Bench Burner
An interview
with Richard Posner
Richard
Posner is introduced. He extends a limp hand, smiles tepidly, and says something
polite. He is long and spare, his eyes pale as a fish, his clothing
conventional, his features thin. He moves delicately; seeming to hover rather
than stand: he has about him the distant, omniscient, ectoplasmic air of the
butler in a haunted house. He escorts his visitor to the waiting room of his
personality, where the visitor will sit, lulled by the bland ambience of the
place, until it is time for murder. It
is not apparent from his mild exterior that Posner is the most mercilessly
seditious legal theorist of his generation. Nor is it obvious that, as a judge
on the Seventh Circuit Court of Appeals, he is one of the most powerful jurists
in the country, second only to those on the Supreme Court. He is powerful,
moreover, not just by merit of his position: he is powerful because he has
decided to be. In hearing a case, he doesn't first inquire into the constricting
dictates of precedent; instead, he comes up with what strikes him as a sensible
solution, then looks to see whether precedent excludes it. In 1991, he ruled
that a group of deputy sheriffs who, without a warrant or probable cause,
assisted with the seizure of a mobile home had not violated the Fourth Amendment
because, rather than entering the house, they had removed it whole. (This
finding was reversed unanimously by the Supreme Court, whose sarcastic opinion
called it "creative.") Posner finds the rituals of the courtroom
vexing impediments to the real business of punishing criminals and freeing up
markets. "I'm not fully socialized into the legal profession, he
says. “I’m like an imperfectly housebroken pet. I still have difficulty
understanding - and this is something that most people get over in tl1eir first
two weeks of law school - lawyers spouting things that they don't believe. If
someone is obviously guilty, why do you have to have all this rigmarole?" Posner
did not set out to seize power: he spotted it drifting and gleefully pocketed
it, like a stray hundred-dollar bill. As one of the founders of the
law-and-economics movement in the nineteen-seventies, he had promoted the idea
that laws should be evaluated for their consequences - economic and otherwise -
as much as for their fairness, and that judges should not deliberate over rights
and duties in the abstract but figure out what kind of incentives their rulings
were putting in place. Now that law and economics has become part of the legal
establishment, it does not seem strange when Posner talks in his opinions about
markets as well as precedent. More recently, he has taken up what, in the hands
of gentler souls like the philosopher Richard Rorty, is the tolerant
anti-doctrine of pragmatism, and made it the underpinning for his career as a
flamboyantly candid judicial activist. As
much as for his contentious opinions, Posner is famous for his freakish
productivity He publishes a book every half hour. Now sixty-two, he has written
thirty-one books, more than three hundred articles, and nearly nineteen hundred
judicial opinions. He has written books about AIDS, law and literature, and the
Clinton impeachment trial, and articles about pornography, Hegel, and medieval
Iceland. This year alone, while working full time as a judge and teaching at the
University of Chicago Law School, he published "Breaking the
Deadlock," a book about the Bush-Gore election; a second, updated edition
of his 1976 book, “Antitrust Law"; and two collections of essays. He also
wrote "Public Intellectuals," a four-hundred-page diatribe against the
species, and “Law, Pragmatlsm, an Democracy,” in which, among other things,
he derides democracy's anti-elitist pretensions and the animal-rights movement.
He is, by a wide margin, the jurist most often cited in scholarly articles -
cited almost as much as the next two, Ronald Dworkin and Oliver Wendell Holmes,
added together. As Milton Friedman, the legendary Chicago economist, puts it,
"He's a very brilliant fella and he's written on everything under God's
green sun. What else do you want?" If
Posner is aggressively unconventional in his judging, he is ten times as much so
in his books. To paraphrase an author he admires, Andre Gide, Posner writes not
to defend himself but to be accused. This is, of course, one of the primary
reasons for his fame. He began propounding the conservative economics of the
Chicago School in the late nineteen-sixties, when the legal academy was almost
entirely left of centre; for this reason, he became the object of furious
criticism even before he published his more outre theories. He relishes facts,
the more obscure and Counterintuitive the better, but as rhetorical weapons
rather than as data. His accounts of the world are sometimes so eccentric as to
be almost Martian. He has argued, for instance, that a higher proportion of
black women than white women are fat because the supply of eligible black men is
limited; thus, black women find the likelihood of profit from an elegant figure
too small to compensate for the costs of dieting. As John Donohue, a law
professor at Stanford, delicately puts it, “A little bit of empirical support
goes a long way for him." Critics
find Posner exasperating, because often he simply doesn't take the trouble to
answer their careful refutations. It is not that he is incapable of doing so -
it is, rather, that he is more attracted to rhetoric than to proof; and believes
it is more powerful. He is not, in the end, very interested in the sort of
prudent rigor that produces watertight logic. He is not the type to spend years
testing his arguments for leakage, sealing tiny cracks and worrying endlessly
over possible ripostes: he would rather risk sending them young into the world,
flawed but forceful, with the advantage of surprise. And yet the uproarious
pugilism and the desire to shock evident in his pages are nowhere visible on the
surface of the man. "I have exactly the same personality as my cat,"
Posner likes to say. "I am cold, furtive, callous, snobbish, selfish, and
playful, but with a streak of cruelty.” The
Dirksen Courthouse in downtown Chicago is a tall, black Mies van der Rohe
building on South Dearborn accessorized with a red metal sculpture by Alexander
Calder set in the wide plaza across the street. Every weekday morning, Posner
enters this sober edifice through a side door and rides up to his office, on the
twenty-seventh floor, in a special judges' elevator. The judges' elevator is
operated by means of an electronic I.D. card, and Posner recently discovered
that the elevator can read the card through several layers of material; now he
shaves nearly ten seconds off his daily routine by turning around, bending over
slightly; and presenting his posterior to the card reader instead of taking out
his wallet and waving the card directly. One
recent Monday, Posner arrived at the courthouse to hear six cases: a tort suit
against a pharmaceutical company; a commercial case involving the right to
transport gas into Indiana; a disability-benefits dispute brought by a deaf
actuary; a suit filed by two brothers who claimed that a village rejected their
real-estate development plans owing to the animosity of a neighbour, Mr.
Funderburk; a case involving liability for damages incurred in an accident on a
barge; and a rape case being tried in federal court because the events had taken
place on an Indian reservation. Posner entered the courtroom and spied the small
group of lawyers sitting there waiting for the day's business to begin. He was
in a benign mood as he joined his two colleagues on the bench, and wondered if
he had been unduly harsh with the litigants who had come before him the previous
Friday. The night before, he had dreamed that he became enraged at a lawyer who
had mistaken sixty thousand dollars for six thousand dollars, and rudely called
him a country bumpkin. The
attorney for the plaintiff in the pharmaceutical case, Ms. Relkin, was the first
to stand up. Relkin was a short, heavyset woman in a gray skirt suit who
conveyed the impression that she would be hard to knock over. Her client, Mrs.
Nelson, had sued the manufacturer of a drug named Parlodel, which she had taken
to dry up her breast milk. Mrs. Nelson had suffered a stroke at the age of
twenty-five, and claimed that it had been caused by the drug. The issue in the
appeal was whether she had brought her suit within the two-year statute of
limitations. Relkin claimed that at the time of the stroke there was
insufficient evidence to point to Parlodel as its cause, and so the beginning of
the limitations period should be pushed forward until the time when proof had
presented itself. As is his wont, Posner interrupted almost immediately. "But
that can't be right," he said, in his pallid monotone. "That would
extend the statute of limitations indefinitely. You're run down by a truck, and
you don't know whether the truck ran you down because it was driven negligently,
constructed negligently, or it was just one of those things, so you just sit
around for ten years waiting for someone to tell you, 'Oh, that driver had a bad
record'?" "Certainly
in that example it does get to the point of the absurd," Relkin conceded,
"but that is New Jersey's law." They
argued back and forth. "Look," Posner said. "You have a
twenty-five-year-old woman, she takes this medicine, she has a stroke-which is
very unusual for twenty-five-year-olds-and the Physicians' Desk Reference says
that there have been, I don't know, fifteen strokes, or something, resulting
from the use of this drug. Why isn't that enough to put any reasonable person on
notice?" Relkin,
showing signs of irritation, told him, "She spoke with her doctors...and
they brushed it off" The two other judges looked bored. One yawned; one
fiddled with his pen, laid his head back on his chair, and gazed at the ceiling.
Posner, however, was enjoying himself. "So
this treating doctor calls up the fox and asks whether the fox ate the
chicken," he said. "The fox says no. Now, that can't be reasonable
investigation." "Well,
one would hope that a pharmaceutical company speaking to doctors prescribing the
drug would be candid," Relkin protested. "Oh,
surely not!" Posner said impatiently. "Why would you expect a
potential defendant to be candid? What kind of world do we live in?" Posner
has a reputation among lawyers who argue in front of him for being harsh but not
nasty. He is contrasted, in this regard, with two of his colleagues on the
Seventh Circuit: Frank Easterbrook, a fellow-conservative, and Ilana Rovner, who
is relatively liberal. "Easterbrook is mean," one private
criminal-defense attorney says. "When he hears an answer he considers
stupid, he rolls his eyes and snorts." Rovner, on the other hand, is
described by the lawyer as "walking
emotion. She will say to the defendant, Hello, Mr. So-and-So, how are you? How
is the food in the jail?" "Posner takes the Michael Corleone
approach," a state attorney says. "It's business, not personal. Posner
is aware that some lawyers find his judging style difficult. In 1994, during his
term as chief judge, the Chicago Council of Lawyers published an evaluation of
him that was evidently the distillation of complaints from many embittered
veterans of his court. The evaluation described him as frequently bored by the
arguments the lawyers presented, and tending to lead the discussion in the
direction of issues that interested him. It concluded, 'A very substantial
number of lawyers believe that Chief Judge Posner routinely does not pay
sufficient attention to the facts, or leaves out crucial facts, in order to
reach desired conclusions... . Chief Judge Posner feels less constrained by
precedent, history, and the proper limits on appellate judging than, in the
Council's view, he should... . He wrote in [his book about Benjamin] Cardozo
'the appellate judge is the central figure in Anglo-American jurisprudence.'
Whether or not that claim is accurate, it is instructive as a statement of Chief
Judge Posner's self-image." The
defence lawyer in the Indian rape case, the last case to be heard that morning,
appeared to be around fourteen years old. He was tall and pen-shaped and wore a
dark suit that looked like a school uniform. "May it please the
court," he said, "my name is John Storino, and I represent the
defendant and appellant, Michael A. Peters." 'All
right," Posner said after Storino was finished. "So what is he doing
in the closet, then?" "I
would assert that there's a perfectly logical-" "He
was embarrassed," Posner said, answering for him. "Right.
His mother-in-law is knocking on the bedroom door, and it is his sister-in-law
who he is-" Posner
interrupted him. "So you're saying she had the ten beers, she agrees to
have sex, she has sex, she falls asleep, but, because of the amount of alcohol,
when she wakes up she doesn't remember the sex." “Exactly.” House
herself admitted that she had no memory of the evening, but she maintained that
she disliked Peters and would never have agreed to sleep with him. To counter
this claim, Storino presented evidence that House frequently drove Peters to and
from work and showed up with him at parties. There were no physical indications
of forced sex, and Peters had had a hickey on his neck, which Storino cited as
evidence that House had been a willing participant. Mr.
Gonzales, the prosecutor, stood up to make his presentation, but Posner
intervened. "The hypothesis that she consented to have sex, had sex, fell
asleep, and forgot," Posner said to him. "Isn't that as plausible as
the government's?" Gonzales
tried but failed to convince him otherwise. "Really,
all you have to go on, I think, is the history of animosity; and yet there may
be animosity, but you'd have to call them family friends, wouldn't you?"
Posner said. "They socialize together... . Maybe if you have ten beers in
you, he looks better than he usually does." Posner
likes to take topics that are normally accorded a certain sentimental deference
and treat them with jarring candour, and sex is one such topic. In 1992, he
published a book called "Sex and Reason," which argued that the sex
drive was subject to the control of rational calculation. The fact that sex was
an instinctive urge, he claimed, did not preclude an economics of sex any more
than the fact that hunger was an urge precluded a science of agriculture. Some
of Posner's conclusions in "Sex and Reason" were merely odd - he
speculated, for instance, that high heels were considered sexy because they
suggested that a Woman was incapable of running away from her spouse-while
others were contentious, such as his suggestion that normal men would rape women
and seduce children if there were no laws against it (it's the ones who do it in
spite of the risk of punishment who are the real weirdoes). One of his most
controversial recommendations was that the current adoption system be replaced
by a free market in babies, which, he maintained, by offering financial
incentives to biological mothers, would make both would-be parents and potential
sellers better off. In "Sex and Reason," he explained that he was
advocating not the selling of babies so much as the selling of parental rights -
he was not, after all, suggesting that babies be sold as slaves or organ donors
- but the clarification did not, somehow, have the impact of the original
argument, and "baby-selling" has since become one of the primary
slogans of his notoriety. "Sex
and Reason" exhibited in a particularly colourful fashion one of Posner's
ongoing contradictions-that between his libertarian instincts and his attraction
to the practical straightforwardness of utilitarianism. On the one hand, he
declares himself a liberal of the nineteenth-century ilk - a view he summarizes,
paraphrasing John Stuart Mill (in a phrase that takes on a certain je ne sais
quoi in a book about sex), as "Your rights end where his nose begins."
On the other hand, he argues that people's moral beliefs are the product of
intractable emotions like sympathy and disgust, and so those emotions must be
taken into account in a calculation of social welfare. "Disgust when
sufficiently widespread," he writes, "is as solid a basis for legal
regulation as tangible harm." Thus, while he talks admiringly of
anti-moralistic sexual mores in Sweden, at the same time he argues that the
practical fact that homophobia exists in the military is a compelling reason to
exclude gay people. In
"Sex and Reason," Posner was interested in conscious sexual choices,
but he is also committed to a theory of unconscious rationality: socio-biology.
He is a thoroughgoing Darwinian, and believes that many of the social and moral
ideas commonly held to be cultural are in fact traceable to the dictates of
reproduction. He subscribes to the idea, for instance, that altruism derives
from the evolutionary imperative to perpetuate one's genes by taking care of
those who share them. This coheres nicely with his general economic approach. As
he puts it, "Economic theory is closely related to the theory of
evolution... . Evolution deals with unconscious maximizers, the genes; economics
with conscious maximizers, persons. Sociobiology
might seem to be an odd idea for a libertarian to be attracted to-most
libertarians are committed, after all, to the idea that human choices are freely
made rather than determined by forces beyond conscious control - but Posner does
not feel a sentimental attachment to the idea of freedom. He is a libertarian of
an instrumental, utilitarian sort: he simply believes that libertarian policies,
in social life as in markets, will tend to maximize wealth and happiness.
Liberty; for him, is a pragmatic principle, not a moral one. Posner
lives in a comfortable, medium-sized house in Hyde Park, a few blocks from the
university campus, with his wife, Charlene, and their cat, Dinah. The house is
furnished unobtrusively: the living-room sofas and chairs are upholstered in
brown and mustard; the floors were for several decades covered with a
wall-to-wall carpet of forest green, until, a few months ago, Posner and
Charlene decided to exchange the carpet for wood floors and Oriental rugs.
Charlene is reserved and competent, her habitual expression a watchful half
smile that suggests that she has views but will offer them only if asked to do
so. With wide-lensed glasses, chin-length brown hair, and dirndl skirts, she
still looks like the Radcliffe girl that she is, class of 1960. Dinah is a grey
Maine coon cat, whose chilly temperament is for Posner a continual source of
suffering. "My
cat doesn't like me," he says mournfully. "This cat, to whom I am
slavishly devoted. She tolerates me, she's polite, but she clearly prefers
Charlene. She regards me as a servant. I feed her, I brush her, I clean the
kitty-litter box, I shower her with endearments-I've even started taking her to
the vet to try to bond with her. Charlene says that I love Dinah more than
anything human, but that is false." Posner has resigned himself to loving
Dinah in the self-abasing tradition of courtly love, the object forever
unattainable. Posner
loves cute animals of all kinds, except dogs. He dislikes dogs partly out of a
sense of duty-he feels that, given his commitment to cats, it would not be quite
proper for him to like dogs as well. But it is also the canine personality that
he finds distasteful. Years ago, when he and Charlene lived in Washington, they
owned a Norwegian elkhound of servile disposition, poignantly misnamed Fang;
whenever anyone evinced the slightest displeasure with him, Fang's lips would
tremble with anxiety, and Posner found this irritating. Posner is an ardent fan
of monkeys, his instinctive attraction perhaps bolstered by his socio-biological
sense that monkeys are basically humans with fewer affectations. A couple of
years ago, he watched a nature program about baboons, and found them so
delightful that he decided to call the zoo and adopt one. Posner
spends weekday mornings in the courthouse, and in the afternoons he goes home to
write. His study is a crowded but orderly room on the second floor. On the
mantelpiece, he has placed a small framed photograph of Dinah and a couple of
pictures of his children, Eric and Kenneth. (Eric is also a law professor at
Chicago who writes about law and economics; Kenneth is a securities analyst in
New York.) Next to these stands a photograph, which Posner cut out of a magazine
and framed, of a hairy Syrian hamster standing on its hind legs in a posture
that reminds Posner of the "Winged Victory of Samothrace," in the
Louvre. On the top of one of his bookshelves stands a plywood scale that the
economist George Stigler made and gave to him twenty years ago, when Posner
became a judge: in one pan of the scale is a small wooden block labelled
'Justice"; in the other pan is a larger, heavier block labelled
"Efficiency." Posner
doesn't like to waste time, so he sticks to a routine (he calls himself
"rigid and Germanic"). But it is not just his regular habits that
allow him to be as productive as he is: he has structured his life so as to free
his mind from any distractions whatsoever. Charlene is in charge of all the
domestic arrangements: Posner describes their relationship as the traditional
Jewish one, in which the pasty-faced scholar husband stays home and studies
while the wife attends to worldly activities. Until a few weeks ago, Posner had
never used an A. T.M.-when he needed cash, he took it from Charlene's wallet. Charlene
does all the cooking except for a little meal that Posner makes every Friday
night: for an appetizer, he puts together a plate of smoked salmon, chopped
onion, capers, and lemon; for the main course, shrimp cocktail, he mixes
sauce that consists of mayonnaise, some cocktail sauce for colour, a
little sugar, a drop of Worcestershire sauce, and (the secret ingredient) two
teaspoons of sherry; (He has never made this sauce for guests, because he
worries that the proportions aren't linear, and that it would go wrong if he
attempted to make it for more than two people. ) Posner rarely goes abroad for
vacation. He is a cautious tourist, he says, prone to anxieties about foreign
thieves and muggers. He likes visiting Switzerland, although, he says, "I
understand that sophisticated people find it boring." He stopped watching
television a day or two after the World Trade Centre collapsed, lest
speculations about future attacks make him a nervous flier. Half
a dozen times a year, Posner and Charlene will have people over for dinner -
often the Chicago economist William Landes, Posner's best friend, and his wife -
but, on the whole, Posner prefers to avoid social life. "People don't say
interesting things," he says. 'A lot of socializing is just dull - I'd
rather read a book. I have a friend, an economist who's Swedish, and he told me
that Sweden has terrible television, so people there spend their time visiting
each other. But that's worse, because when you watch television you get some
information, you even get some moral instruction, you learn to be nice to single
mothers or what have you, but socializing, particularly family - well, that is
deadly. When you're just talking with your friends about trivia, what's the
point?" Posner
is content with his life. He doesn't want any more money; and he has been
happily married for thirty-nine years, since shortly after he first spotted
Charlene in a housedress taking out her garbage. When asked if he has any
regrets, he pauses for a minute to think, and then says he wishes that he hadn't
wasted so much time going to movies in college. "I'm not any kind of genius
or anything," he says. "I went to college early" - at the age of
sixteen, to Yale - "so I've had a lot of years of working, but I think I
needed that. If I'd had more interests or activities and lost that work time, I
think my career would have suffered." Posner
is content, as it happens, but content isn't what he set out to be. One reason
he could never be a liberal (in the current sense of the word) is that, like
many conservatives, he finds the idea of ordinary happiness uninspiring. He has
no interest in a politics whose goal is to give people shelter and enough to
eat. He loves fierceness and glory and heroism. When he looks into the future,
he sees a rationalized, disenchanted world-a Scandinavian-style utopia in which
people are dull and sated and genius has disappeared from the earth. "No
sane person," he says, "not even I, would, for the sake of aesthetics,
try to restore the Athenian slave state, the High Renaissance, the Russian
Revolution, world wars, et cetera. The price is too high. But life will lack
risk and savour." Posner
grew up in New York - first in Manhattan and then in Scarsdale. His mother's
relatives were Jews from Vienna who looked down on his father's family, which
was from Romania and poorer than they were. "They were all poor, Posner
says, but my mothers family had toilet paper, and my father's family had
newspaper." His mother was a Communist and was friendly with the family
that adopted the Rosenberg children. The day Stalin died was a day of mourning
in the Posner household. Posner's mother taught in the New York City public
schools. His father had a chequered career: as a young man, he worked in a
jewellery business with some cousins; then, having attended law school at night,
he became a criminal-defence lawyer. After the Second World War, he became a
moneylender, specializing in second mortgages in New York slums; he was so
successful at this that he bought a Cadillac and, in 1948, moved his family to
Scarsdale. When
Posner grew more conservative (he thought of himself as a liberal until he was
thirty or so), his mother was horrified. "We had terrible fights," he
says. "I became really furious at her. See, she was one of these bright
fools, my mother-quite a bright person, but very limited. The other thing that
annoyed me about her was that I worried about her politics interfering with my
career. Every time I got a government job, I always felt obligated to tell the
authorities that I had this mother who had probably been a Communist. It was an
annoying piece of baggage. Then eventually she became senile and forgot about
politics and actually became very benign. Both Charlene and I breathed a sigh of
relief." Looking back on his red-diaper childhood, Posner considers his
parents hypocrites. "It was just talk," he says of their radicalism.
"They wanted me to live the same conventional life that they lived." Both
Posner's parents lived into their nineties. "My mother, in the course of
her decline, broke her hip," Posner says. "In the olden days, people
broke their hips and died, which was great; now they fix them." After his
mother broke her hip, his father found it difficult to take care of her, so his
parents moved to assisted-living facilities in Chicago. When his father grew
very frail and sick, Posner asked the gerontologist what the point of keeping
him alive with all these procedures was; the doctor informed him that
termination of care had to be voluntary. "Because my father was more or
less compos mentis and wanted treatment, you couldn’t deny it, Posner says.
Growing up the way he did, struggling the way he did, the notion of giving up,
not fighting to the end, was anathema to him. I hope my generation can be a
little more rational about this. I'd like to choose my own time of exit. "I
don't know if this is true of everybody;" Posner says, "but I loved my
parents when I was growing up and they were really the sort of parents you
should be grateful to-my mother gave me great cultural enrichment, and my father
helped me buy our first house, so they were ideal parents. But my thoughts about
them are dominated by their old age. I don't make allowances: when I think about
them, there's no affection. Charlene thinks I'm a little bit unnatural about my
family. But so many people have these decrepit, horrible old parents, and then
they're so upset when they die at ninety; and regard it as a medical failure
that the doctors didn't do this and didn't do that. My father was even annoyed
when my mother died-he thought the doctors hadn't tended her carefully
enough-though by the time she died she couldn't speak, she couldn't use her
hands, she wasn't human. And it's not as if you had a cute animal with the same
mental ability-when you see human beings like that, you don't think, Well, she's
on the level of a chipmunk." Asked what he felt when both his parents had
died, he looked puzzled, as though the question didn't make sense to him.
"I don't have any feeling about it," he said. Martha
Nussbaum, a philosopher at the University of Chicago and a friend of Posner's,
believes that his upbringing and his pious, Communist mother are the reason that
he is now repelled by moralism of any kind, and takes refuge in literature. He
loves scandalous, immoralist writers such as Stendhal and Gide, and, indeed, the
world of French novels is in many ways more congenial to Posner's caustic
temperament, and to an economic, self-interested view of human nature, than that
of the law. (It should be noted that he is not an aesthetic snob, however: among
his favourite movies are those starring Meg Ryan and a more obscure work
entitled "That Darn Cat.") Posner
is as much aesthete as analyst; more than a clever rebuttal he relishes mastery
of tone. One of his favourite terms of abuse is "maladroit." He
appreciates the lumbering, earnest activist only as a comic character, and he is
positively allergic to rectitude. "Some people take pride in being 'good,'
which is to say better than most other people," he writes. "But that
is pride rather than morality. It is related to the striving for status." What
Posner really despises, though, is, as he sees it, the whining, sanctimonious
pedantry of moral philosophers. Asking
oneself whether one's beliefs are justified, he feels, is an esoteric,
self-indulgent business, practiced only by those safely ensconced in tenure.
Ordinary people are unreflective, simply believing whatever they believe;
moreover, moral reflection has never persuaded anyone to change his mind or
pursue one course of action over another, and thus is a deluded and useless
activity. "Knowing the moral
thing to do," he writes, "furnishes no motive, and creates no
motivation, for doing it." (The contention that no one has ever been
persuaded by a moral argument, and that non-philosophers never question their
beliefs, strikes his philosophical critics as so obviously wrong that they have
tended to throw up their hands rather than rebut it.) Posner contrasts the
academic philosopher with what he calls "moral entrepreneurs,” such as
Martin Luther King or the feminist Catharine MacKinnon (whom Posner admires
despite disagreeing with her politics): those who, through sheer charisma and
rhetorical force, sweep people headlong out of their accustomed inertia and
inspire new moralities altogether. At
Yale, Posner majored in English. He studied with Cleanth Brooks, and wrote his
senior thesis on Yeats's late poetry. He still knows many of Yeats's poems by
heart, and uses them as templates for "sizing" his own reactions to
life's events. Thinking about careerism, for instance, calls to his mind this
passage from "The Choice": The intellect of man is forced to choose Perfection of the life, or of the work, And if it take the second must refuse A heavenly mansion, raging in the dark. [click here
for the full poem] Posner
says that he has always liked Yeats because Yeats is a "full-fledged
Nietzschean." Nietzsche is perhaps the philosopher who has had the deepest
influence on Posner. Posner takes from him a conception of morality (made by
humans, not found in the world), a conception of ethics (tenth-hand bromides,
clung to by those lacking the courage or imagination to think for themselves),
and, most of all, an intellectual temperament (delighting in muscular language
and the power to shock). Explaining his attraction to Nietzsche, he says,
"The idea - a bit banal, I'm afraid, when stated in summary form - is that
a person is responsible for his own life. External forces and events are just
the raw materials out of which we make a life, and we have no right to blame
anyone else for the result because it was ours to make or muff This is a
philosophy; or a psychology, basically optimistic, cheerful, and
forward-looking, of self-assertion, of liberation from oppressive frameworks
such as that created by religion or other dogmas." After
college, Posner briefly considered going to graduate school in English
literature but decided to go to Harvard Law School instead. There he earned the
lasting enmity of the authorities by inviting, to the Harvard Law Reviews
seventy-fifth -anniversary dinner, a speaker who had written a luridly malicious
review of a book by one of Posner's professors. (Posner thought he would be
entertaining.) Years later, Posner was approached for a job by the Stanford and
Yale law schools but not by Harvard. At
the time Posner graduated from law school, and, indeed, until the end of the
nineteen-sixties, he still considered himself a liberal Democrat. He voted for
Kennedy, Johnson, and Humphrey (since then he has voted Republican). He clerked
for Supreme Court Justice William Brennan. (Once, misunderstanding his
instructions, he wrote up an opinion arguing the reverse of Brennan's decision;
it was so compelling that Brennan and the Court changed their minds and adopted
it.) Following his clerkship, he went to work for the Federal Trade Commission,
and then served as an assistant to Thurgood Marshall when Marshall was Solicitor
General. Toward
the end of the sixties, however, Posner began to move to the right, because he
disliked the disorder of the student riots. Then, in 1968, while he was teaching
at Stanford, he met two conservative economists from the University of Chicago,
Aaron Director and George Stigler. Having been raised to believe that
conservatives were evil, Posner was surprised to discover that he liked these
economists. He concluded, first, that politics and personality had nothing to do
with each other, and then, as he became more interested in economics, he found
that he agreed with them. He moved to the University of Chicago the next year. Around
the same time, Gary Becker, another Chicago economist, who later won the Nobel
Prize, published an article analysing the effects that particular laws had on
the behaviour of criminals, assuming the criminals were rational. When Posner
read Becker's article, it was clear to him that not only criminal law but all
law created incentives for people to act in certain ways. Law didn't just show
up after the game was over, patting backs and slapping wrists-it set the rules
and assigned the penalties that determined how the game was played in the first
place. Surely, then, the important thing was to figure out what kind of game
these rules and penalties were producing in practice. Why, Posner wondered, did
judges talk so much about precedent and fairness rather than about real-world
consequences, as though their only responsibility were to "the law" in
the abstract-as though law existed in a sealed-off realm separate from life? Posner
also became aware of another, even more famous article, which argued for a
consequence-oriented approach to civil law - "The Problem of Social
Cost," published in 1960 by Ronald Coase, another Chicago economist and
Nobel Prize winner. Suppose, Coase's argument suggested, that a railroad runs
next to a farmer's field and that trains emit sparks that destroy the crops
nearest the track. Suppose, too, that it would cost the railroad a hundred
dollars to install a mechanism to prevent the sparks from flying, but the ruined
crops are worth only fifty dollars to the farmer. Traditionally, a legal thinker
might consider this a case of conflicting property rights, and would decide that
the railroad's right to full use of the track trumped the farmer's right to full
use of his land, or vice versa, leaving the loser worse off.
But, Coase pointed out, it would be more efficient for the railroad to
pay the farmer, say, sixty dollars for a right to emit sparks: that way the
railroad would payout sixty dollars instead of the hundred dollars it would have
cost to install anti-spark mechanisms, and the farmer would profit sixty dollars
from the land rather than fifty, and both would be better off Coase's article
showed that it made sense to think of rights not in terms of moral desert but in
terms of property. As
Posner and others began to look into the way that law worked and the
consequences it had produced in the past, they discovered a strange phenomenon:
although the judges whose collective decisions made up the common law had mostly
talked about rights and duties, in practice they had decided their cases as
though they were trying to bring about the outcome that a free market would have
produced. In, say, the case of the railroad and the farmer, a judge might think
that he was balancing competing rights; but, more often than not, the decision
he made would turn out to be the same as the one that an economist like Coase
would have advocated. It came to seem to Posner as though economic efficiency
were a hidden force that had driven law for centuries. Law had imagined that it
stood above markets, imposing upon them its own notions of fairness and duty;
but, all along, the pull of the market was stronger, shaping judges' ideas
without their knowing it, and making economists of them while they thought they
were in another business altogether. Now
that Posner is so influential, his description of the law has become
self-fulfilling: these days, many judges think like economists because Posner
has told them to. But one of the most striking instances of a judge thinking
like an economist before Posner came along was that of Learned Hand deciding
United States v. Carroll Towing Company, in 1947. The case involved a boat that,
through want of supervision, had been allowed to crash into another boat.
In order to decide who should be held liable, Hand came up with a formula
dictating that a person should be considered negligent only if the amount he had
spent on precautions against an accident was less than the probability of the
accident's occurring, multiplied by the accident's cost. A person should not be
expected, in other words, to bankrupt himself installing every possible safety
device; he should be responsible only for making a sensible calculation that
balanced cost-effective caution and risk. (Guido Calabresi, who is now, like
Posner, a federal appeals judge, published an article in 1961 arguing, in a
similar vein, that courts should endeavour to minimize the cost of accidents to
society by holding liable the party who could have avoided the accident most
cheaply. This article was one of the most important in the inception of law and
economics, along with those of Becker and Coase.) The
law was, then, already closely aligned with Posner's Chicago School free-market
principles, but there were still areas of inefficiency that Posner felt were in
need of correction: antitrust law, for example. Were antitrust laws, he
wondered, really preventing market-restricting practices like price-fixing? Or
were they themselves restricting the market by harassing companies with needless
rules? Posner's scepticism about antitrust legislation had an enormous impact,
and led to his being appointed, in 1999, a mediator in the government's
antitrust lawsuit against Microsoft. (It was hoped that Posner would be
acceptable to both sides-to Microsoft because of his hostility to antitrust law,
and to the government because of his hostility to cartel-like behaviour that
threatened a free market.) Other ideas in the same vein were less influential. For
instance, Posner argued against the notion that racial discrimination was bound
to give way because it was economically inefficient. Some discrimination could
be rational, he maintained, because it lowered the cost of gathering
information: if an employer believed a race to be generally correlated with
undesirable characteristics, then discriminating against members of that race
was no less sensible than discriminating against a brand of' toothpaste because
of a bad experience with one tube. It
was not until Posner started writing dozens of articles on the economic approach
to law that it began to have a real impact. He published the famous
"Economic Analysis of Law" in 1973 (now in its fifth edition), which
established law and economics as a field in its own right. Law and economics
became so prevalent as a component of anti-trust litigation that in 1977 Posner,
along with his friends William Landes and Andrew Rosenfield, decided to form a
consulting company, Lexecon, that would advise law firms and corporations on
economic issues. The company was extremely successful, and provided Posner with
a significant income until he was compelled to give up his stake in it, upon his
assumption of the judgeship, in 1981. In
recent years, Posner has more or less confined himself to the question of what
effects a law is likely to produce, but at one time he had a more ambitious
mission. Twenty years ago, he argued that free markets were not just useful
tools for producing wealth but also morally valuable because they distributed
goods to those who most wanted them, as measured by the price they were willing
to pay. He was immediately attacked by a number of people, notably the legal
philosopher Ronald Dworkin. It was pointed out that willingness to pay a high
price for something did not indicate desire so much as wealth; and that,
furthermore, according to Posner's logic, a person with no money deserved
nothing, regardless of how his poverty came about. On this point, Posner,
uncharacteristically; conceded. Having
written on every subject in the universe, Posner is invited to speak at all
sorts of occasions, not only by large law schools but also by dozens of obscure
associations and sub-associations and societies of narrow purpose. At the annual
meeting of the American Bar Association, in particular, Posner is everywhere in
demand, and when the meeting is held in Chicago, as it was this year, he feels
it would be churlish to turn down too many invitations. Thus, when the week of
the conference rolled around, he donned a grey suit and a plaid tie, collected
his decrepit straw hat for the protection of his skin against the sun, and
braced himself for several days of tediously fulsome introductions, book
signings, posing for cameras (his fans often ask to be photographed with him),
and requests for him to speak in strange and unappealing places like Brazil. The
first group he had agreed to address called itself Scribes. Posner had never
heard of Scribes, but he approved of its mission - the encouragement of stylish
writing on legal subjects - so he had accepted its invitation to lunch. Posner's
sense of the importance of legal rhetoric was rather more extensive, however,
than that of the Scribes fellows nostalgic for a more ornamental era. In his
book about the Bush-Gore election, for instance, Posner claimed that the main
problem with the Supreme Court's decision favouring Bush was its rhetorical
incompetence. It was the pragmatically correct verdict because it averted the
danger of a political crisis, but the judges were at fault for failing to cloak
their obviously pragmatic decree in convincing legal jargon. Posner delights in
the brinkmanship of clever rhetoric. The trick, he feels, is to be as frank as
possible about the pragmatic motives behind a decision, while clothing them in
just enough formalist legal language to enable the decision to pass as a
legitimate judicial move. In an ideal world, Posner believes, everyone would be
as pragmatic about justice as he is, and judges would be able to be brazenly
candid about their reasoning, as was his hero, Oliver Wendell Holmes; meanwhile,
though, rhetoric is fun. For
the past ten years or so, Posner has called himself a pragmatist, meaning that
he believes that there is no objective way to choose between incompatible moral
positions. Pragmatism has a bracingly impious air that he finds exhilarating.
"Politics is about enmity," he says. "It's about getting together
with your friends and knocking off your enemies. The basic fallacy of liberalism
is the idea that if we get together with reasonable people we can agree on
everything. But you can't agree: strife is ineradicable, a fundamental part of
nature, in storms and in human relations." Posner
likes to argue that judges do not confront moral issues-only questions of
strategy. He claims, for instance, that in Brown v. Board of Education the Court
made its decision against segregation on the purely instrumental ground that
segregation had been found to injure black students' self esteem-though most
people would view the decision that black self-esteem was a consideration of
legal relevance as a moral one, and by no means uncontroversial in 1954. It is
one of Posner's most persistent and confounding convictions that it is possible
to practice a purely "pragmatic" jurisprudence. He argues that since
there is no objective way to discover the definitive meaning of an ambiguous
law, judges should ignore highfalutin morality talk and simply make decisions
based on what is sensible and conducive to social welfare-disregarding the
obvious fact that deciding what is sensible and conducive to social welfare is a
controversial business in which moral principles are inevitably at stake. This
problem has been pointed out to Posner many times, and he has conceded it many
times, but he always slides back again into his old ways. For
years, Posner had no solution, but recently he has been reading Carl Schmitt,
and he has now come up with one. Schmitt was an early-twentieth-century German
political theorist who believed that there is no objective way to settle moral
or political disputes because all beliefs are the beliefs of a particular Volk,
or cultural group, and there is no such thing as a universal rationality capable
of mediating between them. Schmitt concluded that the only way to insure
stability was to extract from society people whose beliefs were incompatible
with those of the majority, and he used this argument to support Nazism's
expulsion of Jews from the judiciary. While this scandalous pedigree lends
Schmitt's theory, for Posner, a certain frisson, Posner himself uses Schmitt's
logic to argue for the opposite conclusions. In
the book that he is now writing, "Law, Pragmatism, and Democracy,"
Posner argues that, since America contains so many irreconcilable points of
view, and since it is hopeless to try to assimilate these points of view into
one harmonious legal philosophy, the solution is to insure that the different
points of view are represented in different judges. (In this way, oddly, both Schmitt
and Posner are espousing a version of multiculturalism: they believe that
different populations will always have different points of view, and that
universal rationality is a myth.) One individual judge, Posner reasons, will
never be able to put aside his personal disgusts and instincts, so the trick is
to have lots of different judges whose instincts clash, and hope that, in the
end, their views will cancel out in such a way as to approximate fairness. Of
course, this is not a philosophy to comfort any particular defendant facing a
hostile reception; but that, Posner believes, is just the nature of life in a
diverse society, and covering it up with a lot of obscurantist talk about
liberal principles will not, in the end, make any difference. Scribes
turned out to be rather a fringe affair, the promotion of belletristic
aspirations not being much of a priority in the law business; the lunch,
accordingly, was held in a small room in a difficult-to-locate minor wing of the
Hotel Inter-Continental. Hovering palely behind the lectern, Posner regarded his
small audience without expression. There was an old Jewish joke, he told them,
hat summed up his views of judicial writing - and of law in general, for that
matter - quite well. A man walks through a ghetto in Eastern Europe and spies a
mohel's shop window (a mohel, Posner explained, is a person who performs
circumcisions). He notices to his surprise that the window is full of watches.
The man asks the mohel, "Why the watches?" and the mohel says,
"Well, what would you like me to put there?" Watches,
Posner explained, wrinkling his nose ever so slightly; is what most of legal
talk consists of-jargon, boilerplate, and patriotic flourishes. If only judges
were bold enough to be candid-if only they would stop spouting pious rubbish
about ethics and start talking about how the world really works-then they would
take down the watches and fill their shop windows with something else. One
Sunday morning in the early fall, Posner and Charlene took their four-year-old
grandson, Nathaniel, to the zoo. Nathaniel had an appointment in the early
afternoon, so Posner was eager to get to the zoo first thing, in order not to be
short of time. He allowed, however, rather too much time, and so even though he
absent-mindedly drove past the entrance and quite a long way into town before he
noticed, he, Charlene, and Nathaniel still arrived forty-five minutes before the
zoo opened. It was raining hard, so they first sat in the car and then, when
that got too depressing, huddled, shivering, under the eaves of the ticket booth
until the gates were unlocked. It
was not, truth be told, the first time that Posner had felt cold-shouldered by
the zoo. When his baboon-adoption materials arrived in the mail, they had
contained not a picture of his baboon but only a postcard of a generic baboon. Posner
discovered to his dismay that he had not, in fact, adopted a particular baboon
but, instead, had contributed to a general fund, which entitled him only to part
of a baboon, in a kind of time-sharing arrangement. Upon learning this, he had
felt infantilized and perhaps even a little deceived by the zoo, but then he put
these feelings aside and made inquiries about adopting a whole animal. When
the zoo opened, Posner, Charlene, and Nathaniel made their way to the monkey
house. Inside, it was cavernous and steamy, and monkeys of varying species sat
or screeched or leaped about. Posner's attention was caught by a pair of small
black monkeys who were batting at each other while swinging from branch to
branch with one paw. Posner, who is physically cautious, a slow crosser of
streets, watched them for a minute, then turned anxiously to Charlene.
"They might get hurt, horsing around like that," he said. "One
of them might fall." "They're
monkeying around," Charlene corrected. "I
want to be a monkey," Nathaniel said. When
they left the monkey house, it was raining harder than ever. Still, having come
all that way; Posner felt he should pay a visit to the baboons. The baboons were housed in a fenced-in area, in the centre of which stood a large rock, pocked with shallow caves; Most were huddled inside the caves, away from the rain, but three baboons were sitting side by side on an exposed branch, perfectly still, enduring the weather in silence. Why? Posner mused, fascinated by the sight, which appeared to defy even the most minimal dictates of rationality. Did they like the rain? he wondered. They didn't look as if they liked it. Were they too stupid to move? Were they being punished in some way? Or were they, perhaps, conducting this bitter vigil in the service of some impenetrable simian stoicism? What if one of the stupid or criminal or stoical baboons turned out to be his baboon? Posner stood for a minute more, peering at the dripping, motionless trio on the branch, then turned away, baffled. Larissa
MacFarquhar. The New Yorker. Dec 10, 2001 |
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