Double Aspect

Richard Posner, former judge on the US Court of Appeals for the 7th Circuit and arguably the most influential legal scholar since A.V. Dicey, is no more. There have been plenty of tributes from people who knew him well, such as Cass Sunstein and Brian Leiter, or at least a little, like Ilya Somin, or who can appreciate him from the economics side of the law and economics bridge that he was so instrumental in building, like Brian Albrecht. There are appreciative thoughts from progressive scholars like Jamal Greene, and more right-leaning ones like William Baude, and from mavericks like Richard Hanania.

As Professor Greene puts it, “everyone in the legal academy, no matter their views, has strenuously disagreed with something Richard Posner has written, and still they read the next thing”. And when Professor Sunstein says, “[n]one of us would be what we are without him”, he is right not only about those who were lucky enough to have worked with him, but also of those, like me, who only came into contact with his books, articles, and blog posts. So what follows is only a partial and personal appreciation. Anyway, as Professor Baude observes, Posner’s CV/publication list was longer than anything many others have written.

I’m not quite sure how I came across Posner’s ideas, but I assume it must have been in the contracts class taught by Stephen A Smith. (Professor Smith was no law & econ aficionado himself, but it was one of his talents, and virtues, to give other perspectives a sympathetic hearing.) Whether he mentioned the Becker-Posner blog, or I then found it myself, I don’t remember either, but I become a devoted reader for as long as it ran. I am delighted to report (h/t Dr Albrecht) that the entire archive of Posner’s weekly exchanges — sometimes friendly, sometimes testy — with the Nobel-winning economist Gary Becker has been rescued from digital oblivion and is available online.

What I do remember is that Posner’s Economic Analysis of Law was my summer reading after first year of law school. I also remember mentioning this to a classmate, who found that “gross”. I think I had better taste than she. I also remember making my way down to McGill’s “lower campus” to get Public Intellectuals: A Study of Decline from the humanities library. Whatever credit I can claim for managing to avoid ultracrepidarianism, if not on this blog then at least in other forums, is mostly due to that salutary reading.

Posner’s How Judges Think came out not too long before I was due to head to the Federal Court of Canada for my clerkship year, and this one I actually bought; it helped me understand something of what I was getting myself into, and has travelled with me from Montreal, to Ottawa, to New York, to Auckland, and to Reading. It was also, along with the later Reflections on Judging, an important source for my JSD thesis, which purported to deal with the legitimacy or lack thereof of adjudicative (Posner would have said judge-made) law. Indeed, I think that Posner was the second-most-cited author in my thesis (after Jeremy Waldron).

Because I started this blog while working — or, more accurately, while procrastinating — on that thesis, I have published a fair few posts that discussed Posner, especially his views on judging. Let me mention three. First, a rejoinder to Mark Walters’s argument that Ronald Dworkin was the heir of the early modern common law humanist traditon: Posner, I thought, had a better claim to that inheritance. Second, a discussion of Rowe v. Gibson, 798 F. 3d 622 (2015), a 7th Circuit decision where Judge Posner wrote the majority opinion. In the face of an uncontradicted but probably bogus expert opinion by a prison doctor, judge Posner went a-Googling, because “[i]t is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence” (630). And third, my review of William Domnarski’s biography of Posner (published just after I’d defended the thesis and moved to New Zealand).

After I finished my dissertation, my engagement with Posner sadly decreased. My views — especially my originalism — are mostly at variance with his “pragmatism”, which had no time for originalism or for other attempts at rigid theory, whether doctrinal or moral, and no interest in preventing judges from pursuing the greater good. That said, Posner was scornful of judicial deference to administrative agencies, in a passage from Reflections which I have had occasion to quote here: “when they don’t understand the activity from which a case before them has arisen,” (85-86) he wrote, judges often seek to avoid answering tricky questions for themselves. One way to do that is to let it

be answered by administrative agencies to which judges defer on the often fictitious ground that the agencies have “expertise,” even if their adjudicators are poorly trained, horribly overworked, highly politicized, or all these things at once. (86)

This isn’t the only reason to reject deference, or even the best one, but it’s a good one nonetheless.

And if I haven’t been directly engaging with Posner much in the last 10 years, I still think his influence on me — the conviction he has given to me and to so many others that economic analysis of law is valuable, that trade-offs and incentives must not simply be ignored in the name of high-sounding ideals — hasn’t gone away. For one thing, I still hope that I might work it into my writing, at least after the existing projects on constitutional interpretation are done. But meanwhile, if anything, it is in my teaching that I try to bring it out. Consider, for instance, this post — based on some points I made, and still make, in administrative law lectures — about the costs of procedural fairness, or this one — based on administrative law tutorials — about the costs of an expansive approach to standing on judicial review. The idea that we might want to let the government get away with some amount of unlawful behaviour because catching it all is too costly is counterintuitive to students who encounter it for the first time, but it is straightforward law & econ.

The late Judge Posner’s influence extended far and wide. It went well beyond American courtrooms and lecture halls, but I am sure that the administrative law tutorials at Reading Law School are not the remotest places in earth where it reached either. Professor Somin uses a word which many of us who have also been writing tributes could make our own to describe our feelings: awe. Richard Posner was a living legend. His life has ended, but the legend will live on.