A thread about Richard Posner

From Wikipedia, the free encyclopedia.

Judge Richard Allen Posner (born January 11, 1939, New York City) is currently a judge on the United States Court of Appeals for the Seventh Circuit. He is a major voice in the "law and economics" movement, which he helped start while a professor at the University of Chicago Law School.

Posner attended Yale College (A.B., 1959, summa cum laude) and Harvard Law School (LL.B, 1962, magna cum laude) where he was President of the Harvard Law Review, thereafter clerking for Justice William J. Brennan of the United States Supreme Court during the 1962-1963 term. He joined the faculty of the University of Chicago Law School in 1969, where he remains a senior lecturer. President Ronald Reagan appointed Posner to the Seventh Circuit in 1981. He served as chief judge of the court from 1993 to 2000.

He famously opposed the right of privacy in 1981 by arguing that the kinds of interests protected under privacy are not distinctive. He contended that privacy is protected in ways that are economically inefficient.

Although generally considered a man of the right, Posner's pragmatism, his qualified moral relativism, and his affection for Friedrich Nietzsche set him apart from most American conservatives. Among his other influences are the American jurists Oliver Wendell Holmes, Jr. and Learned Hand. Posner has written several books on jurisprudence and legal philosophy, including The Problems of Jurisprudence; Sex and Reason; Overcoming Law; Law, Pragmatism and Democracy; and The Problematics of Moral and Legal Theory.

Posner has a reputation for prolific publication of articles and books on a diverse number of topics including the 2000 presidential election recount controversy, the Monica Lewinsky scandal and resulting impeachment of President Bill Clinton, and the 2003 invasion of Iraq. Posner has realized his greatest influence through his writings on law and economics - The New York Times called him "one of the most important antitrust scholars of the past half-century." In December 2004, Judge Posner started a joint blog with Nobel Prize winning economist Gary Becker.

Posner has been mentioned as a potential Bush administration nominee to the Supreme Court of the United States.

his affection for Friedrich Nietzsche

Anything in particular you would like to discuss, nimh? For a first look at his approach to analyzing law, I recommend his and Gary Beckers blog

You live in a state where the most severe criminal punishment is life imprisonment. Someone proposes that since armed robbery is a very serious crime, armed robbers should get a life sentence. A constitutional lawyer asks whether that is consistent with the prohibition on cruel and unusual punishment. A legal philosopher asks whether it is just.

An economist points out that if the punishments for armed robbery and for armed robbery plus murder are the same, the additional punishment for the murder is zero -- and asks whether you really want to make it in the interest of robbers to murder their victims.

That is what economics has to do with law. Economics, whose subject, at the most fundamental level, is not money or the economy but the implications of rational choice, is an essential tool for figuring out the effects of legal rules. Knowing what effects rules will have is central both to understanding the rules we have and to deciding what rules we should have.

The fundamental assumption of the economic approach, to law and everything else, is that people are rational. A mugger is a mugger for the same reason I am an economist: Given his tastes, opportunities and abilities, it is the most attractive profession open to him. What laws are passed, how they are interpreted and enforced, ultimately depend on what behavior is in the rational interest of legislators, judges and police.

Rationality does not mean that a burglar compiles an elaborate spreadsheet of costs and benefits before deciding whether to rob your house. An armed robber does not work out a precise analysis of how shooting his victim will affect the odds of being caught, whether it will reduce the chances by ten percent or twenty. But if it is clear that it will reduce the risk of being caught without increasing the punishment, he is quite likely to pull the trigger.

Even in this weaker sense, people are not always rational. I, for example, occasionally take a third helping of spaghetti when a careful calculation of my own long-run interests would lead me to abstain. I am well acquainted with my own irrationality and can take steps to deal with it. Having discovered that bowls of potato chips located within arm's reach empty themselves mysteriously, I at least sometimes take the precaution of putting the bowl somewhere else.

But I do not know other people -- the vast masses of other people to whom economic analysis of law is intended to apply -- well enough to incorporate their irrationalities into my analysis of the effect of legal rules on their behavior. What I do know about them is that they, like me, have purposes they wish to achieve and tend, albeit imperfectly, to correctly choose how to achieve them. That is the predictable element in human behavior, and it is on that element that economics is built.

Economic analysis of law comprises three closely related enterprises: predicting what effect particular legal rules will have, explaining why particular legal rules exist, deciding what legal rules should exist.

The first is the least controversial. While many people believe that the consequences of a law are not the only thing determining whether it is good or not, very few believe that consequences are irrelevant. To the extent that economic analysis helps us perceive consequences of laws and legal decisions, especially consequences that are not obvious, it is useful to anyone trying to make or understand law. If imposing a life sentence for armed robbery results in more murders, that is an argument, although not necessarily a decisive argument, against doing it. If restrictions on the terms of leases make both landlords and tenants worse off, that is an argument, probably a decisive argument, for letting them set the terms themselves.

The second enterprise is using economics to explain the existence of the legal rules that we observe. This is a hard problem. Legal rules are created by legislatures and courts -- and we have no very good theory, economic or otherwise, to explain the behavior of either. From a theoretical standpoint, the project is part of the field of economics known as public choice theory, an area still very much on the intellectual frontier. It contains some interesting first steps, such as Niskanen's model of the budget-maximizing bureau and Becker's analysis of the political market on which interest groups bid for legislation, with more concentrated and better organized groups typically using government to benefit at the expense of less concentrated and worse organized groups, but it has not yet provided a fully worked out and generally accepted economic theory of government.

There is, however, one conjecture about law that has played a central role in the development of law and economics. This is the thesis, due to Judge Richard Posner, that the common law, that part of the law that comes not from legislatures but from the precedents created by judges in deciding cases, tends to be economically efficient. I was implicitly relying on that conjecture when I explained the difference between the standard of proof required for criminal conviction and that required for civil conviction; my argument took it for granted that legal rules were somehow shaped in a way that properly traded off the costs of false convictions against those of false acquittals.

Why might one expect legal rules to be like that? One answer offered by Posner is that the two central issues with which we might expect judges to be concerned are efficiency (the effect of legal rules on the size of the pie) and distribution (their effect on who gets how much of it). Common law consists, in large part, of the legal framework for voluntary transactions. The result, as suggested by the earlier example of rental contracts, is that most distributional effects of changes in the law are illusory; when we compel a change in one term of a contract in favor of one party, other terms, such as the price, shift in the opposite direction, wiping out the distributional effect. If using the law to redistribute is difficult, it seems plausible that judges might leave redistribution to legislatures and concern themselves with efficiency instead.

A very different argument offered by others for the same conclusion is that inefficient rules generate litigation and litigation, eventually, generates changes in the rules. If some rule of the common law prevents people from doing things that are in their mutual interest, those affected will try either to change the law or work around it. Eventually they succed. We are left with a common law shaped, "as if by an invisible hand," to maximize economic efficiency.

In addition to these theoretical arguments for why we might expect common law to be efficient, there is also the empirical argument, the claim that the common law legal rules we observe are, in most although not all cases, the rules we would get if we were trying to design an economically efficient legal system. Posner's immensely productive career as a legal theorist has largely consisted of piling up evidence for that argument. One of the things we will be doing in future chapters is examining that evidence, comparing the implications of economic theory with the laws we observe. In chapter 19 we will return to the Posner thesis in order to sum up the theoretical and empirical arguments for and against.

The Posner thesis that the common law is efficient leads naturally to the third and most controversial part of law and economics: using economic analysis to decide what the law should be. If we conclude that some particular common law rule -- say the nonwaivable warranty of habitability discussed a few pages back -- is economically inefficient, that it makes us on net poorer, one conclusion is that Posner is wrong. Another might be that we should change it.

As a matter of simple logic, the claim that legal rules are efficient is entirely separate from the claim that they ought to be efficient. One might believe that laws should be efficient but are not, or that they are but should not be, that other values should have greater weight than economic efficiency in determining the law. In practice, however, the two claims are easily confused and often combined. Posner makes both, although in each case with substantial qualifications.

well sure I'd readily admit to intellectual immaturity but I kinda like Friedrich Nietzsche.

Anything in particular you would like to discuss, nimh?

It's just that thanks to one poster's everpresent references to the man, I (and other ignorants like me I'm sure) have come to associate him solely with, for example, hatred of Clinton, and other such conservative pet causes.

In one post a little while ago, you mentioned that you were actually a bit of a fan - well, appreciative in any case - of the man, and that you were a bit worried about the impression we might all get away with of his writings (those of us who otherwise dont have a clue, obviously).

Now, that may seem to be a small step, but it actually represents an enormous leap. Suppose, for instance, I am faced with a decision whether to act or not. If I decide to act, I can expect, on average to lose $100 80 percent of the time. On the other hand, 20 percent of the time I can expect to gain $1000. On purely economic grounds, I would be well advised to go ahead and take the action, because on average I can expect my action will lead to a gain of $120 (($1000 * .2) - ($100 * .8)) (or we can say it has an "expected utility" of $120). Indeed, an economist might predict that, being a rational actor, I will go ahead and act. But that is far different from saying that I should take the action.

Joe, in one of the drug legalization threads where we met, you mentioned that you have some experience with Posner the judge. And while I can't remember exactly what you said, I think the direction was that you often find Posner's arguments disingenious and fallacious, and based on bogus statistics. What you just described looks like just a normal honest disagreement between your jurisprudence and his. Was my impression in that other thread wrong? If not, could you expand a bit on the "disingenious" part?

The end of the Cold War, the collapse of the Soviet Union, the surge of prosperity worldwide that marked the global triumph of capitalism, the essentially conservative policies, especially in economics, of the Clinton administration, and finally the election and early years of the Bush Administration, marked the apogee of the conservative movement. But there were signs that it had not only already peaked, but was beginning to decline. Leading conservative intellectual figures grew old and died (Friedman, Hayek, Jeanne Kirkpatrick, Buckley, etc.) [..] and their successors lacked equivalent public prominence, as conservatism grew strident and populist.

By the end of the Clinton administration, I was content to celebrate the triumph of conservatism as I understood it, and had no desire for other than incremental changes in the economic and social structure of the United States. I saw no need for the estate tax to be abolished, marginal personal-income tax rates further reduced, the government shrunk, pragmatism in constitutional law jettisoned in favor of "originalism," the rights of gun owners enlarged, our military posture strengthened, the rise of homosexual rights resisted, or the role of religion in the public sphere expanded. All these became causes embraced by the new conservatism that crested with the reelection of Bush in 2004.

My theme is the intellectual decline of conservatism, and it is notable that the policies of the new conservatism are powered largely by emotion and religion and have for the most part weak intellectual groundings. That the policies are weak in conception, have largely failed in execution, and are political flops is therefore unsurprising. The major blows to conservatism, culminating in the election and programs of Obama, have been fourfold: the failure of military force to achieve U.S. foreign policy objectives; the inanity of trying to substitute will for intellect, as in the denial of global warming, the use of religious criteria in the selection of public officials, the neglect of management and expertise in government; a continued preoccupation with abortion; and fiscal incontinence in the form of massive budget deficits, the Medicare drug plan, excessive foreign borrowing, and asset-price inflation.

By the fall of 2008, the face of the Republican Party had become Sarah Palin and Joe the Plumber. Conservative intellectuals had no party.

And then came the financial crash last September and the ensuing depression. These unanticipated and shocking events have exposed significant analytical weaknesses in core beliefs of conservative economists concerning the business cycle and the macroeconomy generally. Friedmanite monetarism and the efficient-market theory of finance have taken some sharp hits, and there is renewed respect for the macroeconomic thought of John Maynard Kenyes, a conservatives' bête noire.

The above quote, which makes up the bulk of this blog post of Posner's, should be seen as squarely lying in the category "even Posner agrees that.."