Richard Posner

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Richard Allen Posner
Richard Posner

Assumed office 
Nominated by Ronald Reagan
Preceded by Philip Willis Tone

Chief Judge of the Seventh Circuit
In office
1993 – 2000
Nominated by (Automatic succession)
Preceded by William Joseph Bauer
Succeeded by Joel Martin Flaum

Born January 11, 1939 (1939-01-11) (age 70)
New York, NY
Spouse Charlene

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

Posner is the author of nearly 40 books on jurisprudence, legal philosophy, and several other topics, including The Problems of Jurisprudence; Sex and Reason; Overcoming Law; Law, Pragmatism and Democracy; and The Problematics of Moral and Legal Theory. One journal has identified Posner as the most cited legal scholar of all time.[1] He is considered to be one of the most respected judges in the United States.[2]


[edit] Early life and education

Posner graduated from Yale College (A.B., 1959, summa cum laude), majoring in English, and from Harvard Law School (LL.B, 1962, magna cum laude), where he was first in his class[3] and president of the Harvard Law Review. After clerking for Justice William J. Brennan of the United States Supreme Court during the 1962-63 term, he served as Attorney-Advisor to Federal Trade Commissioner Philip Elman; he would later argue that the Federal Trade Commission should be abolished.[3] He went on to work in the Office of the Solicitor General in the US Department of Justice, under Solicitor General Thurgood Marshall.[3]

[edit] Legal career

In 1968, Posner accepted a position teaching at Stanford Law School.[3] In 1969, Posner moved to the faculty of the University of Chicago Law School, where he remains a senior lecturer and where his son Eric Posner is Professor. He was a founding editor of the Journal of Legal Studies in 1972. President Ronald Reagan appointed Posner to the Seventh Circuit in 1981.[2] He served as Chief Judge of that court from 1993 to 2000, while remaining a part-time professor at the University of Chicago.[2]

Posner is a pragmatist in philosophy, a classical liberal in politics, and an economist in legal methodology. A prolific author of articles and books on a wide range of topics including law and economics, law and literature, the federal judiciary, moral theory, intellectual property, antitrust law, public intellectuals, and legal history. He is also well known for writing on a wide variety of current events including the 2000 presidential election recount controversy, President Bill Clinton's affair with Monica Lewinsky[2] and his resulting impeachment procedure, and the 2003 invasion of Iraq, his analysis of the Lewinsky scandal cut across most party and ideological divisions. Posner's greatest influence is 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, Posner started a joint blog with Nobel Prize-winning economist Gary Becker.[4]

Posner was mentioned in 2005 as a potential nominee to replace Sandra Day O'Connor because of his prominence as a scholar and an appellate judge. Robert S. Boynton has written in The Washington Post that he believes Posner will never sit on the Supreme Court because, despite his "obvious brilliance," he has taken a number of "outrageous" positions:

  • Contention in a 1999 Raritan article that the rule of law is an accidental and dispensable element of legal ideology;
  • Argument that buying and selling babies on the free market would lead to better outcomes than the present situation, government-regulated adoption;[5]
  • Support for the legalization of marijuana and LSD.[6]

In 2007 his review of Israeli Supreme Court Chief Justice Aharon Barak's book, The Judge in a Democracy, caused quite a stir in Israel, renewing debate about judicial activism.[citation needed]

[edit] Legal positions

Judge Posner making a dinner speech at Federal Trade Commission

Posner's political and moral views are hard to summarize. His parents were affiliated with the American Communist party, and in his youth and in the 1960s as law clerk to William J. Brennan he was generally counted as a liberal. However, in reaction to some of the perceived excesses of the late 1960s, Posner developed a strongly conservative bent. He encountered Chicago School economists Aaron Director and George Stigler while a professor at Stanford.[3] Posner summarized his views on law and economics in his 1973 book The Economic Analysis of Law.[3]

Today, although generally considered a man of the right, Posner's pragmatism, his qualified moral relativism and moral skepticism,[7] and his affection for the thought of Friedrich Nietzsche set him apart from most American conservatives. Among his other influences are the American jurists Oliver Wendell Holmes, Jr. and Learned Hand.


Along with Robert Bork, Posner helped shape the anti-trust policy changes of the 1970s through his idea that 1960s anti-trust laws were in fact making prices higher for the consumer rather than lower, while he viewed lower prices as the essential end goal of any anti-trust policy.[3] Posner and Bork's theories on anti-trust have now become the prevailing view in academia and at at the Justice Department.[3] Posner was said in 2000 to have a "godlike stature on anti-trust law."[3]


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


He has written several opinions sympathetic to abortion rights, including a decision holding "partial-birth abortion" constitutionally protected in some circumstances.

Breach of contract

He has written favorably of efficient breach of contracts. Breach often leads to a worse result for society: if a seller breaches a contract to deliver building materials, the buyer's workers might go idle while the buyer looks for a replacement. The lost production is a cost to the company and its workers and, as such, is a social cost. An efficient breach would be a situation in which the benefits are higher than the costs, because the seller is better off for breaching even after paying damages to the buyer (for instance, if some third party had a much greater need for the building materials, and was willing to pay a higher price for them).


He has characterized the U.S.'s "War on Drugs" as "quixotic." In a 2003 CNBC interview, he discussed the difficulty of enforcing criminal marijuana laws and asserted that it is hard to justify the criminalization of marijuana compared to other substances.

Animal rights

Posner engaged in a debate on the ethics of using animals in research with the philosopher Peter Singer in 2001 at Slate magazine. He argues that animal rights conflicts with the moral relevance of humanity, and that empathy for pain and suffering of animals does not supersede advancing society.[8] He further argues that he trusts his moral intuition until it is shown to be wrong, and that his moral intuition says "it is wrong to give as much weight to a dog's pain as to an infant's pain." He leaves open the possibility that facts on animal and human cognition can and may change his intuition in the future; he further states that people whose opinions were changed by consideration of the ethics presented in Singer's book Animal Liberation failed to see the "radicalism of the ethical vision that powers [their] view on animals, an ethical vision that finds greater value in a healthy pig than in a profoundly retarded child, that commands inflicting a lesser pain on a human being to avert a greater pain to a dog, and that, provided only that a chimpanzee has 1 percent of the mental ability of a normal human being, would require the sacrifice of the human being to save 101 chimpanzees."[8]


When reviewing Alan Dershowitz's book, "Why Terrorism Works: Understanding the Threat, Responding to the Challenge", Posner wrote in The New Republic, September 2002 that "If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used—and will be used—to obtain the information. ... no one who doubts that this is the case should be in a position of responsibility."[9][10]


In a dissent from an earlier ruling by his protege Frank Easterbrook, Posner wrote that Easterbrook's decision that female guards could watch male prisoners while in the shower or bathroom must stem from a belief that prisoners are "members of a different species, indeed as a type of vermin, devoid of human dignity and entitled to no respect.... I do not myself consider the 1.5 million inmates of American prisons and jails in that light."[3]

[edit] Judicial career

Posner is one of the most prolific legal writers, through both his massive amount of opinions and other writings;[11] unlike many judges, he writes all his own opinions.[3]

In his decision in the 1997 case State Oil Co. v. Khan, Posner wrote that a ruling 1968 anti-trust precedent set by the Supreme Court was "moth-eaten," "wobbly," and "unsound."[3] Nevertheless, he abided by the previous decision with his ruling.[3] The Supreme Court granted certiorari and overturned the 1968 ruling unanimously; Sandra Day O'Connor wrote the opinion and spoke positively of both Posner's criticisms and his decision to abide by the ruling until the Court decided to change it.[12]

In 1999, Posner was welcomed as a private mediator among the parties involved in the Microsoft anti-trust case.[2]

[edit] Awards and honors

A 2004 poll by Legal Affairs magazine named Posner as one of the top twenty legal thinkers in the U.S., along with Dahlia Lithwick and Instapundit.[13]

In 2008, the University of Chicago Law Review published a commemorative issue titled “Commemorating Twenty-five Years of Judge Richard A. Posner."[14] A website, Project Posner, details all of Posner's many legal opinions.[15] It was begun by Posner's former clerk, Tim Wu, who calls Posner "probably America's greatest living jurist."[11] Another of Posner's former legal clerks, Lawrence Lessig, wrote: "There isn't a federal judge I respect more, both as a judge and person."[16] The former dean of Yale Law School, Anthony T. Kronman, said that Posner was "one of the most rational human beings" he had ever met.[3]

[edit] Major publications

The following is a selection of Posner's writings.

[edit] Selected Books

[edit] Selected articles

[edit] See also

[edit] References

  1. ^ (Shapiro, Fred R, 2000. "The Most-Cited Legal Scholars," Journal of Legal Studies, University of Chicago Press, vol. 29(1), pp. 409-26).
  2. ^ a b c d e "Microsoft Case Gets U.S. Judge As a Mediator". The New York Times. 1999-11-20. Retrieved on 2008-10-17. 
  3. ^ a b c d e f g h i j k l m n "The Negotiator: No one doubts that Richard Posner is a brilliant judge and antitrust theoretician. Is that enough to bring Microsoft and the government together?". CNN. 2000-01-10. Retrieved on 2008-10-17. 
  4. ^ "The Becker-Posner Blog". Gary Becker and Richard Posner. Retrieved on 2008-10-17. 
  5. ^ Richard A. Posner, The Regulation of the Market in Adoptions, 67 B.U. L. Rev. 59 (1987); Elisabeth M. Landes & Richard A. Posner, The Economics of the Baby Shortage, 7 J. Legal Stud. 323 (1978).
  6. ^ Boynton, Robert S. Boynton. "'Sounding Off,' a review of Richard Posner's Public Intellectuals", The Washington Post Book World, January 20, 2002.
  7. ^ Richard Posner, The Problematics of Moral and Legal Theory, 111 HARV. L. REV. 1637, 1642-46 (1998) (clarifying his moral positions)
  8. ^ a b Posner-Singer debate at Slate
  9. ^ Michael Slackman What's Wrong With Torturing a Qaeda Higher-Up?, New York Times May 16, 2004
  10. ^ Philip Hensher Hollywood is helping us learn to love torture, The Independent, June 26, 2007
  11. ^ a b "A Paean to the Opinions of the Prolific Judge Posner". The Wall Street Journal Law Blog. 2006-10-06. Retrieved on 2008-10-17. 
  12. ^ "High Court Approves Retail Price Ceilings". The Los Angeles Times. 1997-11-05. Retrieved on 2008-10-17. 
  13. ^ "The Inimitable Judge Posner Strikes Again". The Wall Street Journal Law Blog. 2008-01-17. Retrieved on 2008-10-17. 
  14. ^ "Project Posner". Project Posner. Retrieved on 2008-10-17. 
  15. ^ "Project Posner". Lawrence Lessig. 2006-10-18. Retrieved on 2008-10-17. 

[edit] External links

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