How Judge Posner Thinks

Some thoughts on a recent book about Richard Posner

I have recently finished reading William Domnarski’s book on Richard Posner ― for reasons that will become apparent, I hesitate to describe it as a biography ― and want to share some thoughts on it. Be warned though: I am something of a Posner fanboy, and thus start with a favourable pre-disposition to a book that reads, at places at least, like it was written by one of my fellows. That said, as Paul Horwitz wrote in his review, for the New Rambler, of Judge Posner’s own Diverging Paths: The Academy and the Judiciary, “Posner’s greatest fans, if they take him as a model, should be his most engaged critics”. (I think this is also true any intellectual fandom; I try to apply this precept to my own, anyway.) If Mr. Domnarski’s book has a failing, it is probably that the author did not take this wise piece of advice as seriously as he might have.

In a sense, Richard Posner is of course a biography. It proceeds chronologically, from its subject’s childhood in New York, to his studies in English (at Yale) and law (at Harvard), to a Supreme Court clerkship (with William Brennan Jr.), to government work (in the office of the Solicitor General and at the FTC), to academic positions (briefly at Stanford and then in Chicago), to the bench. But after the first chapter, which covers the first three decades of Judge Posner’s life, up until his appointment in Chicago, there is no biography in a traditional sense at all. It is almost as if, having joined the Chicago faculty, Richard Posner simply lived happily ever after ― and I suppose he really has, although his happiness is often of a grumpy kind. It’s not for nothing that he loves cats and, as Mr Domnarski notes, compares himself to them.

Unlike in fairy tales, however, the happy ever after is the real story here ― albeit a purely intellectual, almost a dis-incarnate one. We learn about Judge Posner’s articles and books ― and others’ responses to them; about his questioning style on the bench ― and lawyers’ views on it; about his judgments ― and their citation rates; about how his decisions fared at the Supreme Court ― and how the Supreme Court fares in his writing (the short answer: very badly); and a little about his interactions and debates with academic colleagues (Martha Nussbaum is probably the one who is mentioned most often, but others, including Ronald Dworkin, feature too) ― and their views of him. More than a biography, then, Mr Domnarski has written a study of Judge Posner’s place in American law and legal thought in the last half-century ― the people and ideas who influenced him, his influence on others through his academic and judicial writing, and the reception that his ideas got from those who encountered them.

For a Posner fan, such as myself, this is fascinating stuff. And indeed it should be very interesting reading for anyone interested in American law, or in law tout court, which as an intellectual pursuit is now difficult to imagine without the economic analysis that Judge Posner has championed, especially in the first few decades of his career. Judge Posner has been many things to different people: an object of admiration (albeit tempered with criticism) to some, and a bogeyman to others; a heartless arch-conservative and a “deeply moral” progressive hero. That’s partly because his views have long been too complex for any caricature, but also because they have changed considerably over time, and Mr. Domnarski’s book does us all a service in re-tracing their evolution.

In one way, however, it does come up short. As mentioned above, I think Mr. Domnarski is not always living up to a Posner fan’s duty to be also a critic. He is critical sometimes, to be sure, as when he discusses some of Judge Posner’s adventures in looking for information outside the record, extending even to staging experiments in his chambers (which Josh Blackman has mocked as “judicial fashion shows“). But there might be more to be said about, and against, Judge Posner’s self-styled pragmatism, his admitted lack of regard for constitutional text and other conventional legal authority, and his criticisms of the legal profession’s hidebound ways, then is to be found in Mr. Domnarski’s book.

Alone, Judge Posner is often the child who is willing to cry out the truth about the nakedness, or at least the raggedness of the clothing, of the legal system’s majesty. (In a joint interview that Tom Ginsburg conducted with Mr. Domnarski and Judge Posner this week, the Judge mentioned that he was “brattier” than his classmates at Harvard Law School. He still is brattier than anyone in the legal world, as the interview itself demonstrates.) But what would happen to the legal system if all judges acted as he does, elevating policy at the expense of law? As a critic, Judge Posner scores painful hits when lambasting his colleagues, and lawyers, for a lack of scientific literacy or even curiosity. But what has he really offered in the way of solutions to a problem he eloquently identifies? Mr. Domnarski does not engage with, and mostly does not raise, these difficult questions, and that’s too bad.

These questions however reinforce a point that Mr. Domnarski does make (underscoring it with a running comparison between Judge Posner and his colleague, first at the University of Chicago and then on the 7th Circuit, Frank Easterbook). Judge Posner, in a word, is unique. Perhaps for the better, but mostly I think for the worse, there is not his like, and perhaps never will be. Mr. Domnarski’s study of Judge Posner’s thought and its place in American law is a reminder of what a force this thought has been, and remains.

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