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Posner, Richard Allen

POSNER, RICHARD ALLEN

"[A] pragmatic approach [to lawisone] that is practical and instrumental rather than essentialist—interested in what works and what is useful rather than in what 'really' is. It is therefore forward-looking, valuing continuity with the past only so far as such continuity can help us cope with problems of the present and the future."
—Richard A. Posner

Author, legal scholar, and federal judge, Richard A. Posner is one of the most influential and controversial figures in contemporary American law. Posner rose to prominence first in academia in the early 1970s, when he championed economic analysis of the law. With his faith in free-market capitalism and the goal of economic efficiency, he became one of the leaders of the so-called chicago school of antitrust theory, whose ideas left a broad mark on this area of law over the next decade and a half. In 1981, Posner was appointed to the U.S. Court of Appeals for the Seventh Circuit, and in 1993 he became its chief judge. In addition to issuing more than

double the national average of judicial opinions annually, Posner has continued to publish many articles and books that range across legal, social, and intellectual topics.

Posner's ascent began immediately after his graduation from Harvard Law School in 1962. After he graduated first in his class, he clerked for U.S. Supreme Court Justice william j. brennan jr., who reportedly regarded him as one of the few geniuses he had ever known. A career as a government attorney followed, with stints on the federal trade commission (FTC); in the department of justice, working for solicitor general thurgood marshall; and in President lyndon johnson's administration. During this time, Posner also served on a highly visible american bar association commission that evaluated the FTC, which established him as a strong supporter of free-market capitalism and a critic of federal regulation.

In 1968, Posner left government service for academia. He taught at Stanford Law School for a year before leaving for the University of Chicago, where he would soon make his mark as a leading legal theorist. Economics served as the foundation for his approach; like adherents of the nineteenth-century Utilitarian movement in english law, Posner believed firmly in the values of the free market and individual initiative. Many legal problems, he argued, were best approached using economic models of analysis, including those in areas that were not directly related to economics, such as criminal and constitutional law. The approach also had implications for public policy. In one widely cited example, Posner argued that the system of child adoption would be improved if parental rights were sold, because it would reduce the imbalance between supply and demand. Although some critics accused Posner of reducing complexities to simple matters of dollars and cents, his 1972 book Economic Analysis of Law became standard reading in many law schools over the next two decades.

During the 1970s, Posner became a leader of the Chicago School of antitrust theory. This was a group of scholars, (mostly associated with the University of Chicago) who, like Posner, held antiregulatory and free-market views. The Chicago School sought to turn antitrust law—which is concerned with fair competition in business—on its head. At the heart of their arguments was the goal of economic efficiency. Posner and others urged the U.S. Supreme Court to abandon its critical view on so-called restraints of trade because business practices that had been thought to hurt competition actually helped it. Their theories had considerable impact on the Court and U.S. corporations for the next decade and a half.

Meanwhile, Posner's visibility grew. He published a prodigious amount of writing, established Lexecon, Inc.—a consulting firm specializing in economics and the law—and founded the Journal of Legal Studies. Then political fortune smiled on him: the administration of President ronald reagan saw Posner and other members of the Chicago School as its intellectual bedfellows, providing theoretical muscle to its antiregulatory politics. In 1981, Reagan nominated Posner to the U.S. Court of Appeals for the Seventh Circuit, in Chicago.

The appointment provoked debate. In a decade and a half, Posner had accumulated a number of enemies in academia, nearly all of them on the political left. Although he considered himself a classical liberal in the tradition of john stuart mill, his ideas struck opponents as crass, latter-day conservatism. Leading the attack was ronald dworkin, the prominent liberal professor of jurisprudence at New York University Law School and Oxford University.

Posner struck back, accusing his opponents in the professoriat of being afraid to take stands in their own work. However, he announced that he would avoid imposing his theoretical views from the bench.

As an appellate judge, Posner has defied the labels that his critics have applied to him. Some of his opinions have a conservative bent: In Dimeo v. Griffin, 943 F.2d 679 (7th Cir. 1991), for example, Posner wrote for an en banc majority that upheld mandatory drug testing for jockeys and others in horse racing, favoring the state of Illinois's interest in requiring the testing. Some of his other opinions have been more liberal: In Metzl v. Leininger, 57 F.3d 618 (7th Cir. 1995), Posner wrote an opinion that declared unconstitutional an Illinois law requiring schools to close on Good Friday, holding that the law violated the Establishment Clause of the first amendment. Some of his opinions have employed his fascination for economics: In a 1986 case, American Hospital Supply Corp. v. Hospital Products Limited, 780 F.2d 589, he provided a mathematical formula for determining when preliminary injunctions should be denied:

if the harm to the plaintiff if the injunction is denied, multiplied by the probability that … the plaintiff … will win at trial, exceeds the harm to the defendant if the injunction is granted, multiplied by the probability that granting the injunction would be an error.

Most notably, he has authored a much greater number of judicial opinions than have his peers on the federal bench. By 1994, he had averaged 77 opinions annually, as compared with the national average of 28.

Since the 1980s, Posner has exerted a strong influence on legal thought. He has argued against popular conservative criticism that judges are too aggressive and activist, asserting that judges must be able to exercise interpretative discretion. Besides being widely read and debated in academia, he found a popular audience with his 1992 book Sex and Reason, a critical analysis of sexual behavior. Posner is also a leading contributor to the law and literature movement, impressing critics and supporters alike with his knowledge of jurisprudence and literary theory.

Although Posner stepped down as chief judge of the Seventh Circuit in 2000, he has remained visible. In 1999, U.S. District Judge Thomas Penfield Jackson named Posner to serve as a mediator in the Microsoft antitrust lawsuit that the federal government had brought. Posner was outspoken about the U.S. Supreme Court's decision in bush v. gore, 531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000), where the U.S. Supreme Court held that the Florida Supreme Court could not constitutionally order a recount of thousands of votes for the 2000 presidential elections. In Breaking the Deadlock, Posner finds that the decision was abominable, but that the judgment was necessary to avoid a constitutional crisis.

Along with Economic Analysis of the Law, several of Posner's books are widely read among academics, including Economics of Justice, Law and Literature, and Antitrust Law. Posner has received numerous honorary degrees, including the degree of doctor of laws from Yale University, Georgetown University, the University of Pennsylvania, Syracuse University, and Duquesne University. He also has received numerous awards and has served in a variety of capacities in several scholarly and professional organizations.

Posner is married to the former Charlene Horn. They have two sons and three grandchildren.

further readings

Margolick, David M. 1981. "Ally and Foe Admire Bench Nominee." New York Times (November 20).

Posner, Richard A. 2000. The Collected Essays of Richard A. Posner. Northampton, Mass.: Edward Elgar.

——. 1987. "What Am I? A Potted Plant?" The New Republic (September 28).

——. 1977. Economic Analysis of the Law. Boston: Little, Brown.

Rosen, Jeffrey. 1995. "Overcoming Law" (book review). Yale Law Journal 105.

cross-references

Jurisprudence; Utilitarianism.

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Posner, Richard Allen

Richard Allen Posner (pōz´nər), 1939–, American jurist and author, b. New York City, grad. Yale (A.B., 1959), Harvard Law School (LL.B., 1962). He clerked for Supreme Court Justice William Brennan and was an assistant at the Federal Trade Commission (1963–65) and to the solicitor general (1966–68) before becoming (1968) an associate professor at Stanford Law School and a professor (1969) at the Univ. of Chicago Law School. Remaining at Chicago as a senior lecturer, he was appointed (1981) to the U.S. Seventh Circuit Court of Appeals and served (1993–2000) as its chief judge. Unconventional, influential, and pragmatically conservative as a judicial activist and a legal theorist, Posner is especially known for his advocacy of an economic approach to law. He has written hundreds of articles and almost 40 books on a wide range of subjects. His books include Economic Analysis of Law (1972; 6th ed., 2003), Antitrust Law (1976), Law and Literature (1988, repr. 1998), Problems of Jurisprudence (1990), Sex and Reason (1992), The Federal Courts (1996), Catastrophe: Risk and Response (2004), Preventing Surprise Attacks (2005), and Not a Suicide Pact: The Constitution in a Time of National Emergency (2006). In a repudiation of some of his former opinions, A Failure of Capitalism: The Crisis of '08 and the Descent into Depression (2009) proposed that overreliance on deregulation and reckless monetary policies contributed significantly to the crisis and faulted conservative economists for their blindness to the subprime problem. The Crisis of Capitalist Democracy (2010) also looks critically at the same crisis, taking a longer view of the system and of issues of economic collapse and gradual recovery. Reflections on Judging (2013) analyzes judicial changes since he became a judge (1981); in it he rejects legal formalism and calls for a renewed consideration of context and a commitment to legal realism.

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Posner, Richard Allen

POSNER, RICHARD ALLEN

POSNER, RICHARD ALLEN (1939– ), U.S. jurist, law professor, and author. Posner graduated from Yale College summa cum laude in 1959 and Harvard Law School (where he was president of the Harvard Law Review) magna cum laude in 1962. He was a law clerk to Supreme Court Justice William J. Brennan, Jr. (1962–63) and to Federal Trade Commissioner Philip Elman (1963–65), and an assistant to Solicitor General Thurgood Marshall (1965–67). In 1967 he became general counsel to the President's Task Force on Communications Policy. He began teaching law at Stanford Law School in 1968 and moved to the University of Chicago Law School in 1969, where he continued full-time teaching until his appointment by President Reagan to the Court of Appeals for the Seventh Circuit in December 1981. He was chief judge of that court from 1993 to 2000, while he continued teaching part-time at the University of Chicago.

Posner is a prolific writer on the law, economics, and social sciences. By 2005, he had written over 2,200 judicial opinions, 38 books, and more than 300 articles and book reviews. His original ideas regarding the interplay of economics and law were presented in volumes titled Antitrust Law: An Economic Perspective (1976), Economic Analysis of Law (1977), and The Economics of Justice (1981). These books, as well as his articles in the Journal of Legal Studies, which he founded, encourage economic analysis of law and had a major influence on American judicial thought in the final decades of the 20th century. Between 1977 and 1981 he was the president of Lexecon, Inc., a firm of lawyers and economists that he created to provide economic and legal litigation research. In 1991, a national legal periodical reviewing potential candidates for the Supreme Court called Posner "the most influential legal scholar and the most brilliant judge in the country."

The most notorious of his unconventional proposals was to eliminate the black market in adoptions by abolishing adoption agencies, buying and selling babies on the open market, and paying pregnant unwed mothers not to have abortions. Following the 9/11 terrorist attacks on the United States, he turned his attention to national security and intelligence reform, publishing books on those subjects in 2004 and 2005.

A case that demonstrated Posner's innovative approach to Jewish religious rights concerned a public high school basketball association's prohibition against the wearing of headgear by basketball players. An Orthodox Jewish team that wore yarmulkes fastened with bobby pins challenged the rule as a violation of freedom of religion. While upholding the general applicability of the rule when yarmulkes are "insecurely" fastened with bobby pins during a game, Posner directed that the team be permitted alternative means of securing the yarmulkes during play with chin straps or by sewing them onto headbands.

[Nathan Lewin (2nd ed.)]

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