१२ नोव्हेंबर, २०२६

Goodbye to Judge Posner.

NYT obituary: "Judge Richard A. Posner Has Died. His Influence in Law Was Beyond Compare. He was the most-cited legal scholar of the latter half of the 20th century and an unapologetic iconoclast, favoring pragmatism over judicial tradition. He was 87."
Judge Posner’s admirers said he had no real competition in the annals of American jurisprudence. They regarded him as a superb writer, with a limpid, conversational style and a sure command of tone. He wrote with self-confidence and authority, qualities his critics said were not always entirely deserved. Most important, in a field that overvalues tradition and formalism, he was known as a brilliantly original iconoclast....

Judge Posner called his approach to judging pragmatic. His critics called it lawless. “I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said in a 2017 interview. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”

He was among the leading figures in the movement to analyze legal problems using economics. In looking to social utility rather than abstract moral values like fairness or equality, he gained a reputation as a cold, calculating conservative. He was just 33 when he published “Economic Analysis of Law,” a tour de force that helped establish the field....

I have so many posts with the "Posner" tag in my 22-year archive. It would take a long time just to cherry-pick the best things. Click the tag and scroll to find many fascinating quotes from Posner collected over all those years. For example, what he said when somebody asked him, "In what ways, if any, does it make sense to speak of the study of law as the study of legal science?"

But I will cherry-pick one thing that's very special to me, from April 2005. It's about blogging:

Here's an article in the Chicago Tribune about the Becker-Posner Blog. (Via Memeorandum.) Judge Posner has a lot to say about blogging -- as you would expect -- and he's especially big on comments:
I think this is very important, with Business Week or any other magazine, of course, you get letters to the editor. But with the blog, what would be a letter to the editor is a comment that a reader of the blog can just post. It's much easier than writing a letter, it doesn't have to be formal, you don't need a stamp or anything. It's really simple.

Then it's very easy for us to read the comments. And we can respond to them. Again, we don't have space or time limitations, we can respond whenever we have a set of interesting comments, then the commenters, they can go back and forth with each other, so the blog stimulates a kind of interchange that isn't really feasible in the print medium....

What's good about it is that through the comments and through other blogs, as we know from the CBS fiasco, there's extremely rapid communication and correction. So the blogger doesn't have his fact-checking staff, but if you make a mistake, within minutes a bunch of people have descended on you....

What have you thought of what people have posted to the comment areas of the blog?

They have a high-average quality -- I found it also when I did Lessig's blog. The comments are really interesting, they add a lot to it.

It makes for a more participatory relationship. If you read a newspaper, it's a passive experience. You don't have much of a sense of being part of the enterprise. [On a blog] you have regular commenters; they clearly feel they are contributing to this enterprise. I worry a little about people spending too much time sitting in front of the computer doing this stuff.
I had the comments on for a while about a year ago, and I turned them off because I found myself doing so much writing over on the comments pages and because a few people were being abusive. I wanted to concentrate my writing on the front page. These days, I spend a lot of time reading and responding to email, which is really a displaced comments page and an even less "front page" kind of writing for me. I'm impressed by Judge Posner's very pro-comment attitude. So in honor of Judge Posner, I'm turning my comments back on.

Let's see how it goes. I hope some of my regular emailers will switch to comments. I'm going to resist responding too much on the comments pages and maybe save up my response and put it on the front page in an update, which I think will be more efficient (and certainly more public) than responding to email (which I've been doing a lot of). I expect commenters to keep a civil tone, and I think most will, because the email I get is extremely thoughtful, well-written, and not abusive. I'll just delete abusive comments without making a fuss about it. So go ahead and comment.

३९ टिप्पण्या:

Will Cate म्हणाले...

I'd forgotten that it was he who motivated you to switch comments back on in 2005.

Lawnerd म्हणाले...

My favorite Posner opinion was when he sat on the Federal Circuit and the subject matter was a patent for a glass dildo. Classic.

hawkeyedjb म्हणाले...

Compare Posner's attitude with that of Oliver Wendell Holmes, when he was told he should use his appointment to the Supreme Court to "do justice:"

"That is not my job. It is my job to apply the law."

Howard म्हणाले...

Posner's attitude is much more intellectually challenging and it requires ego death to perform well. It's a very human way to function as opposed to Oliver Wendell Holmes which could be easily replaced by even the most rudimentary AI.

Not an oldster. म्हणाले...

The anti-israel election results finished him off...

Has anyone hear from Tom Palay?

Peachy+2 म्हणाले...

Ketenzi Brown never read a single book by him. I guarantee it.

Not an oldster. म्हणाले...

Lol.
Oh dear... is soap opera drama the theme for the day?
You really want to go back there?

I trust your comments punching down in the Isthmus article to promote your blog wont be repeated? Your cries to the police of abuse?

You're fading, ann.
You backed the wrong pony, married down, and castrated two sons. This collection of bigoted old farts and the misogynists you've assembled here is ypur legacy...

No women. You are the Queen Bee and this is your work. Own it? Stop blaming others for what you've built and who is spreading hate in the comments on your moderated platform.

Joe Bar म्हणाले...

Wow. He said only two SC justice were "good enough" to be there. Interesting.

RCOCEAN II म्हणाले...

"Most important, in a field that overvalues tradition and formalism, he was known as a brilliantly original iconoclast...."

I'm sure Judge Posner was original and brilliant. But an Iconoclast? What Icons were he smashing? He just got a glowing obit from the MSM.

Mike (MJB Wolf) म्हणाले...

“Common sense solutions” used to be easier to reach when the average American shared common values and agreed with the principles evident in our Declaration and Constitution. Now we have imported enough barbarians from low-trust cultures that our resident commies in perpetual agitation mode have millions of co-conspirators to game the system.

Common sense is now rare and endangered.

RCOCEAN II म्हणाले...

"I worry a little about people spending too much time sitting in front of the computer doing this stuff."

I constantly worry about that too. Not just "making comments" but just in general. But I'm glad Posner wasn't an elitist who was "concerned" about people having the ability to join in the discussion and in affect "talk back" to the media and the powerful.

Twitter sorta does that too. Senator Thune was just complaining about "People on social media". Not Trump. He's getting pushback and he hates it. No doubt all these powerful people would love it, if it was all one-way communication like in 1993

Mike (MJB Wolf) म्हणाले...

He wrote over 50 books, Ocean. It’s up to you to see what tradition he forsook in being iconoclastic. Start with his views on precedents and applying free-market economics where “moral values” used to be deciding factors.

Magilla Gorilla म्हणाले...

What sticks in my mind most about Posner is his disregard for personal liberty, especially his undisguised contempt for the Second Amendment. May God bring him peace and let light perpetual shine upon him, but thank God he never made it to SCOTUS.

D.D. Driver म्हणाले...

"That is not my job. It is my job to apply the law."

But Holmes was also a nasty progressive whose idea of "applying the law" was permitting the state to engage in forced sterilizations.

Mike (MJB Wolf) म्हणाले...

His reversal on voter ID is one point on which I strongly disagreed with where he landed. It is ridiculous— not common sense at all— to claim that requiring ID to vote is “voter suppression.” We can no longer run elections on the Honor System. That very American tradition is lost forever as we slip further into a low-trust society in which “to the cheater goes the spoils.”

Even Olive Garden asks for ID.

Amadeus 48 म्हणाले...

I was an entering student at UCLaw in 1970. First up: Posner teaching Torts. The previous year he had written a book review with the opening line: "Torts is not my field".

M Jordan म्हणाले...

Comments are as important as the blog post itself. It’s one vs. the many. I feel I have my thumb on the pulse of the nation thanks to comments.

NKP म्हणाले...

How novel. A "Judge" more interested in "judgement" v. "precedent".

On the othe hand, it does open the door to stupid opinions affecting the laws that govern us.

Freder Frederson म्हणाले...

So in honor of Judge Posner, I'm turning my comments back on.

I missed the post where you turned off comments. Hope it wasn't something I did

Freder Frederson म्हणाले...

I gave up on Posner when he hilariously tried to explain homosexuality in economic terms (I think it was in a essay/article, not a decision).

Freder Frederson म्हणाले...

Even Olive Garden asks for ID.

Bullshit! Only (and not always) if you are ordering alcohol.

RCOCEAN II म्हणाले...

When you get a glowing obit from the Establishment's Mouthpiece the NYTs. And you're a US appeals court judge you're not an "iconoclast". Case closed.

Narr म्हणाले...

I think I used to see articles by Posner in Teh New Republic, but I usually skipped them, the same way I usually skip law-centric posts and discussions here.

RCOCEAN II म्हणाले...

Interesting that people are sending long thoughtful emails to Althouse instead of commenting. I'd love to see their work.

Ann Althouse म्हणाले...

“ I missed the post where you turned off comments. Hope it wasn't something I did”

That was written back in 2006. The blog started in 2004 and it at some point I put comments on and then decided to turn them off, but I turned them back on because of the way Judge Posner wrote about them and then I’ve had them on ever since 2006 except for the short period when I had to turn them off because Blogger’s moderation tools were not working.

I really don’t remember who was being abusive all the way back in 2004 2005 2006. I’m just always hoping that people will participate and make good comments, so I’m not holding any grudges. Don’t worry about it.

Jersey Fled म्हणाले...

“Common sense solutions” made by nine people in robes scare me.

Lazarus म्हणाले...

Posner was popular with conservatives. Then he wasn't. I gather he was too utilitarian or too pragmatist or too scientistic or too economistic.

RCOCEAN II म्हणाले...

Wonder why this Reagan appointee became popular with the NYT's? Well, Grok has the answer:

1• shift on Same-Sex Marriage: While he had previously argued against a constitutional right to same-sex marriage in his 1992 book Sex and Reason, Posner dramatically reversed his stance. In 2014, he authored a sweeping Seventh Circuit opinion striking down state bans on same-sex marriage in Indiana and Wisconsin, describing the bans as "savage discrimination" and later criticizing conservative justices who dissented.
2• Liberal Rulings on Social and Civil Rights Issues
3• Rejection of Formalist Constraint: Posner increasingly abandoned traditional legal formalism and originalism, openly arguing that judges should deal pragmatically with changing social values and public consensus rather than strictly bound by historical or textual dogma.

A cynic might say, Posner realized he wasn't going to get appointed to the SCOTUS and decided to "Grow in office".

Chuck म्हणाले...

"Ann Althouse said...
...
...The blog started in 2004..."

Interesting. So you were basically about 12 years into blogging when Trump came along, and now it's been 12 years as Trump begins to go out.

Indefinitely Extended Excursion™️ म्हणाले...

I recall being impressed with Judge Posner when he was a guest on some news show. The interviewer asked him a question. Unlike the typical guest who answers nuanced questions instantly and unequivocally, without any doubt, Posner hemmed and hawed as he identified complexity. His sincerity and brilliance shone through.

boatbuilder म्हणाले...

"Judge Posner called his approach to judging pragmatic. His critics called it lawless. “I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said in a 2017 interview. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”

He was among the leading figures in the movement to analyze legal problems using economics. In looking to social utility rather than abstract moral values like fairness or equality, he gained a reputation as a cold, calculating conservative. He was just 33 when he published “Economic Analysis of Law,” a tour de force that helped establish the field...."

That sounds like he was just making it up. But "abstract moral values like fairness or equality" are no more an element of "legal rules, statutes, constitutional provisions" than economic values. And as a general proposition sound economics (in short supply, I grant you) are far better guides to law and policy than "abstract moral values," which tend to vary according to the person doing the moralizing.

boatbuilder म्हणाले...

Magilla--I did not know that he was anti-Second Amendment. A sound economic analysis would dictate the opposite. If they can take your arms, they can take everything else. Or more correctly, if they take your arms, they will take everything else. And there is very little you can do about it.
Thank God the drafters of our Constitution understood these things better than Judge Posner.

Mason G म्हणाले...

"We can no longer run elections on the Honor System."

One would think the existence of "Learing Centers" would have amply demonstrated that.

mikee म्हणाले...

Wait, a judge is celebrated for ignoring the laws? Have I got that right? Ah, well, thanks UW for producing that sort legal mind.

Saint Croix म्हणाले...

Posner was popular with conservatives. Then he wasn't. I gather he was too utilitarian or too pragmatist or too scientistic or too economistic.

He didn't know what a baby was.

Saint Croix म्हणाले...

Wisconsin tried to protect women in abortion cinics and Posner smacked the state down

He also wrote a law review article advocating that market principles should apply to adopting children. AKA "the baby selling proposal."

Alex Kozinski got in trouble for sex harassment (I think). I was always a Kozinski man. And Frank Easterbrook. Those were my two favorite appellate judges. Neither got a nomination, either. It's hard to make the Supremes! And very political.

I read Posner, I still have one of his books. He was so smart. But I was not an acolyte, not even in law school. He had money on the brain.

In general Reagan had a lot of terrific judges. I was not a fan of Bork or Posner. Bork had a hostility to free speech that I did not like. Professor Amar wrote a great eulogy for Bork.

Reagan was super pro-life, and his legal advisors fucked with him. Mary Ann Glendon would have been an obvious pick. She wrote this book.

Democrats made a conscious effort to stack the Court with pro-choice judges. Ginsburg had to swear to Democrat Senators that she was on board with Roe v. Wade (because she had criticized the opinion for its sexism). Republicans, meanwhile, were afraid to ask judges what they thought of the opinion. Trump was literally the first to promise to appoint "pro-life judges" (which was wildly improper, but really tit-for-tat to what liberals were doing on the pro-choice side).

There was no way Republicans would put an obviously pro-choice judge on the Supremes. (The pro-lifers would kill them for doing so). And the left thought Posner was poison. He was ready to bring back Lochner. Posner was absolutely a capitalist. He was smart but too smart, willing to supplant the law with his own mind. And he didn't know what a baby was.

Mike (MJB Wolf) म्हणाले...

Freder the rash scratches again!

Perhaps he missed the many stories in September describing how Olive Garden had started checking ID to verify the forever pasta (?) cards patrons could buy. Too many were loaning out the “non-transferable” pasta passes.

But I could have listed ANY of the many picayune reasons people have to show government ID to do routine things that are far less important than securing the vote.

Magilla Gorilla म्हणाले...

Boatbuilder, here is an article where Posner gave his views on the Second Amendment. Typical collective-rights theory that the Second was about the National Guard. https://newrepublic.com/article/62124/defense-looseness

Lazarus म्हणाले...

Sunstein on Posner:
https://casssunstein.substack.com/p/on-richard-posner
"Richard Posner described himself as cold, callous, snobbish, selfish, and cruel. It's a good line, but it wasn't true."

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