The Provocative Life of Judge Richard Posner

by John Fabian Wittoct

New York Times
October 7, 2016

Once in every great while, nature and nurture combine in a single person the qualities of erratic genius, herculean work ethic and irrepressible ambition. Think of Picasso in art, Ali in boxing or Roth in literature. Add a penchant for provocation untethered to the constraints of conventional human interaction and you get, in the law, Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit in Chicago.

In the past half-century there has been no figure more dominant or more controversial in American law than Posner. He has written more than 50 books, over 500 articles and nearly 3,000 majority opinions for his court. Not even Supreme Court Justice Oliver Wendell Holmes Jr. — to whom he is often compared — matches his productivity and range.

William Domnarski’s biography, the first such book on Posner, draws on extensive interviews and on access to Posner’s correspondence at the University of Chicago. “Richard Posner” portrays a man who aims self-­consciously to be (in his words) a “Promethean intellectual hero,” remaking the world of the law by sheer will. The questions Domnarski asks are, What makes this extraordinary character tick — and to what end?

Posner was born in New York City in 1939 to parents who were Communists, or at least fellow travelers. He held traditionally left-liberal views into adulthood, including the time of his clerkship on the Supreme Court with a liberal lion, Justice William Brennan. But he was restless and sometimes even bored. He considered leaving the law for graduate training in literature. In the late 1960s, however, he discovered economics. Legal thought has never been the same.

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Brexit – Britain is paying the price for a badly designed choice

by Richard Thaler

Financial Times
August 17, 2016

The Brexit vote has created an environment of great uncertainty for Britain, the EU and the global economy. No one can predict with any confidence what will happen for at least the next three years, but economists are in unusual agreement that if Brexit occurs it will be bad for the UK and bad for the EU.

How did we get here? One answer lies in “choice architecture”, the decision-making framework in which choices are made.

Consider the original charter of the EU. An important principle of good choice architecture is to anticipate how things might go wrong and take steps in advance to mitigate the damage. In the formation of the EU, this step did not seem to attract the attention it deserved. What will happen if a country breaks the rules but is financially unable to repay its debts? The ambiguity in this answer has been evident in the drama surrounding Greece and a possible Grexit.

Another question that appears to have been left unanswered originally is what would happen if a country wanted to leave, as the UK might wish to do. The EU resembled the Hotel California described in the Eagles song, where, “You can check out any time you like / But you can never leave”. Eventually this omission was addressed by the creation of the now famous Article 50 of the Lisbon treaty, adopted in 2009, which provides the rules for a country that wishes to secure a divorce from the EU. (It has to be said that few states have provisions for leaving a union to which they belong; the US fought its deadliest war over such an issue.)

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Richard A. Posner’s ‘Divergent Paths: The Academy and the Judiciary’

by Kermit Roosevelt

New York Times
January 29, 2016

If Richard Posner did not exist, who would dare invent him? The most-cited legal scholar of all time, who is arguably America’s greatest living judge; a man who publishes a book a year while writing all his own judicial opinions; an icy ration­alist who once confessed to unrequited love for his cat. . . . It’s all a bit too much to believe. Arthur Conan Doyle’s Sherlock Holmes and Gene Roddenberry’s Mr. Spock are probably the closest anyone has come.

Fortunately, Posner does exist. A judge on the United States Court of Appeals for the Seventh Circuit since 1981, he remains a senior lecturer at the University of Chicago Law School and from these dual positions continues to produce an astounding amount of work. He made his reputation as a scholar by pioneering the economic analysis of law in the 1970s and since then has ranged widely, covering topics like the relationship between law and literature, the regulation of sex, the 2000 election and antiterrorism. Recently he has turned his attention to the federal judiciary and written two books, “How Judges Think” and “Reflections on Judging.”

His latest, “Divergent Paths,” continues that trend, though its aim is less illumination than critique and reform. The book has two parts. The first, and longer, identifies problems facing the modern federal judiciary; the second offers suggestions for how law schools might alleviate them. Both display Posner’s characteristic clearheaded insights. “Divergent Paths” is a valuable contribution to debates over the future of federal courts and law schools alike.

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