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Questioning Richard Posner
Winning is important in our society. Winners are assumed to be best. Very few applicants are admitted into elite law schools; fewer still become professors at those schools; and it is a truly tiny group who become leading federal judges, as Richard Posner has done. He is the winner, and those who have tried to compete against him are second-best.
Or maybe that’s not quite right. The reader is probably aware that even a person who gets appointed to the Supreme Court can still make some pretty big mistakes. Posner, too, is probably wrong sometimes.
How significant are his mistakes? We would not normally suspect someone in his position of being a menace to society, but his book may make you think otherwise. To prime the pump, I offer the following excerpts from two reviews of his writings. First, on Posner’s favorite subject, I quote Jedediah S. Purdy, "The Chicago Acid Bath: The Impoverished Logic of Law and Economics," The American Prospect no. 36 (January-February 1998): 88-95 (
http:// epn.org/prospect/36/36purdyfs.html), as follows:[Posner] believes that morality ... is a tangled mass .... [He] is convinced that economics ... is a science able to illuminate all human behavior. [Thus] he describes all areas of sexuality as ... measurable in the same terms as other appetites. For instance, prostitution is a "substitute good" for marriage. ... "The difference is not fundamental. In ... marriage, the participants can compensate each other for services performed by performing reciprocal services, so they need not bother with pricing each service." ... The desire for rape is, as Posner writes, "for the most part quite normal," but law should discourage it because its one-sidedness fosters an inefficient rearrangement of goods and services. ... [Yet] [a]nyone who tried to put a price tag on a marriage would show us that he didn’t understand the point of marriage. ... [W]hen we choose among various courses of action, we always consider several kinds of value .... Either we are always trying to "maximize" many, often inconsistent values or, more plausibly, [Posner’s wealth-maximization] metaphor is just wrong ....
Second, on the topic of how the courts should operate, here’s a quote from Senior Judge Jon O. Newman (U.S. Court of Appeals, 2nd Circuit), who wrote "Judge Posner's Crisis Recedes: A Review of Richard Posner’s The Federal Courts: Challenge and Reform" (at http://jurist.law.pitt.edu/lawbooks/revapr98.htm#Posner):
[Posner speculates] that people dissatisfied with their state government can (will?) move to another state ... [whereas] I would have thought that climate, job opportunities, tax policy, and quality of life considerations affect most people’s choice of residence far more than their perception of the extent to which a state's courts are adequately checking other branches of state government. ... In some instances, his reliance on economic theory yields recommendations that are startling. Commenting on the rise in federal court caseloads, for example, especially at the appellate level, he points out that those who administer the court system have been reluctant to take one of the obvious steps to reduce demand for judicial services—impose delay. ... Absent from his analysis is any consideration of the societal costs of deliberately delaying the resolution of court disputes.
Perhaps Posner himself best sums up who he is and what it took to get where he is. Consider this quote from Problems of Jurisprudence (page 192):
The judge’s essential activity ... is the making of a large number of decisions in rapid succession, with little feedback concerning their soundness or consequences. People who are uncomfortable in such a role - and perhaps they are the most introspective, sensitive, and scrupulous people - do not become judges, do not stay judges, or are unhappy judges.
A person does not have to file or defend a lawsuit in order to discover that the courts often contribute unnecessary misery to the world’s already adequate supply. Most of us have heard of singers, inventors, writers, and other creative people who have wasted years of their lives being distracted and ruined by lawsuits of various kinds. Many of us, or our families, friends, or other people we know, have spent tremendous amounts of money and have suffered much needless pain in divorces, liability actions, and other kinds of lawsuits, or have been unfairly harassed by law enforcement authorities; and many have experienced the frustration of being wronged, visiting an attorney, and discovering that there was nothing we could do about the situation unless we wished to spend more on legal fees than the problem was worth.
This is the nature of the system that employs Judge Posner. He will continue to draw a paycheck from it for the rest of his working career (unless he voluntarily chooses to leave earlier), and will do so regardless of whether the system becomes less, or more, inefficient and unresponsive. These observations would trigger some questions even if he had not expressed his views in a book. At the very least, his employment suggests that he probably has above-average patience for bureaucratic nonsense. His day-to-day activities, and the views he expresses in Problems of Jurisprudence, might have been very different if he knew more about the effects of his ideas and words upon the people whom he judges.
Judges are part of the way we do things, just as the Inquisition and the Holocaust were the way that other people did things at other times in history. The acts may be different – most of the injustices facilitated by our judges destroy lives and homes much more quietly – but you can still hear the echo of wretched, medieval cruelty in our prisons, where mere kids discover that this miserable system fosters rapes and gang beatings. I don’t think most readers of this page would wish that kind of thing on a dog.
Posner is a distinguished representative of the judicial establishment. I appreciate his willingness to admit his concerns about the validity of our legal system, and his interest in alternatives. In this book, I have attempted to portray those concerns and interests accurately. But I can hardly admire what seems to be an attempt, by him, to buy our trust on the cheap, by admitting a few morsels of dissatisfaction while continuing to profit from his rank in, and support of, a monstrous system.
