Richard Allen Posner (; born January 11, 1939) is an American legal scholar and retired United States circuit judge who served on the U.S. Court of Appeals for the Seventh Circuit from 1981 to 2017. Posner was appointed by President Ronald Reagan, and he served as the chief judge of the Seventh Circuit from 1993 to 2000. A former law professor at the University of Chicago, Posner was identified in The Journal of Legal Studies as the most-cited legal scholar of the 20th century. As of 2021, he is also the most-cited American legal scholar of all time. He is widely considered to be one of the most influential legal scholars in the United States.
Posner is known for his scholarly range and for writing on topics outside of law. In his various writings and books, he has addressed animal rights, feminism, drug prohibition, same-sex marriage, Keynesian economics, law and literature, and academic moral philosophy, among other subjects.
Posner is the author of nearly 40 books on jurisprudence, law and economics, antitrust law, and several other topics, such as Economic Analysis of Law, The Economics of Justice, The Problems of Jurisprudence, Sex and Reason, Law, Pragmatism and Democracy, and The Crisis of Capitalist Democracy. Posner has generally been identified as being politically conservative; towards the end of his tenure on the bench, however, he distanced himself from the positions of the Republican Party, authoring more liberal rulings involving same-sex marriage and abortion. In A Failure of Capitalism, he writes that the 2008 financial crisis caused him to question the rational-choice, laissez-faire economic model that lies at the heart of his law and economics theory.
Early life and education Richard Allen Posner was born on January 11, 1939, in New York City, to Blanche (Hofrichter) and Max Posner. His father's family were of Romanian Jewish descent, and his mother's family were Ashkenazi Jews from Galicia in the Austrian Empire.
After high school, Posner studied English literature at Yale University, graduating in 1959 with a B.A., summa cum laude, and membership in Phi Beta Kappa. He then attended Harvard Law School, where he was president of the Harvard Law Review. He graduated in 1962 ranked first in his class with an LL.B., magna cum laude.
Legal career
After law school, Posner was a law clerk to Justice William J. Brennan Jr. of the U.S. Supreme Court from 1962 to 1963. He then served as an attorney-advisor to Commissioner Philip Elman of the Federal Trade Commission (FTC); he would later argue that the FTC ought to be abolished. Posner went on to work in the Office of the Solicitor General in the United States Department of Justice, under Solicitor General Thurgood Marshall.
In 1968, Posner accepted a position teaching at Stanford Law School. In 1969, Posner moved to the faculty of the University of Chicago Law School. He was a founding editor of The Journal of Legal Studies in 1972."Journal of Law and Economics" The University of Chicago. Retrieved December 9, 2022.
On October 27, 1981, Posner was nominated by President Ronald Reagan to a seat on the United States Court of Appeals for the Seventh Circuit vacated by Judge Philip Willis Tone. Posner was confirmed by the United States Senate on November 24, 1981, and received his commission on December 1, 1981. He served as Chief Judge of that court from 1993 to 2000 but remained a part-time senior lecturer at the University of Chicago. Judge Posner retired from the federal bench on September 2, 2017. Posner stated that he had originally planned to retire at the age of 80, but instead retired at 78 due to disputes with other judges on the Seventh Circuit over treatment of pro se litigants.
Posner is a pragmatist in philosophy and an economist in legal methodology. He has written many 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, Bill Clinton's affair with Monica Lewinsky and his resulting impeachment procedure,See (2000), . 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, titled simply "The Becker-Posner Blog". Both men contributed to the blog until shortly before Becker's death in May 2014, after which Posner announced that the blog was being discontinued. He also had a blog at The Atlantic, where he discussed the then-current Great Recession.
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 wrote in The Washington Post that he believed Posner would never sit on the Supreme Court because despite his "obvious brilliance," he would be criticized for his occasionally "outrageous conclusions," such as his contention "that the rule of law is an accidental and dispensable element of legal ideology," his argument that buying and selling children on the free market would lead to better outcomes than the present situation, government-regulated adoption, and his support for the legalization of marijuana and LSD.Boynton, Robert S. Boynton. "'Sounding Off,' a review of Richard Posner's Public Intellectuals" , The Washington Post Book World, January 20, 2002.
Posner on Posner Series
Judge Posner was the focus of a "series" of posts (many Q&A interviews with the Judge) done by University of Washington Law Professor Ronald K. L. Collins. The twelve posts—collectively titled "Posner on Posner"—began on November 24, 2014, and ended on January 5, 2015, and appeared on the Concurring Opinions blog.
Legal and philosophical positions
In Posner's 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. Posner summarized his views on law and economics in his 1973 book The Economic Analysis of Law.
Today, although generally viewed as to the right in academia, Posner's pragmatism, his qualified moral relativism and moral skepticism, (clarifying his moral positions) and his affection for the thought of Friedrich Nietzsche set him apart from most American conservatives. As a judge, with the exception of his rulings with respect to the sentencing guidelines and the recording of police actions, Posner's judicial votes have always placed him on the moderate-to-liberal wing of the Republican Party, where he has become more isolated over time. In July 2012, Posner stated, "I've become less conservative since the Republican Party started becoming goofy."Nina Totenberg, Federal Judge Richard Posner: The GOP Has Made Me Less Conservative NPR, July 5, 2012 Among Posner's judicial influences are the American jurists Oliver Wendell Holmes Jr. and Learned Hand; he has written that "Holmes is the greatest jurist ... because the sum of his ideas, metaphors, decisions, dissents and other contributions exceeds the sum of contributions of any other jurist of modern times", and he has applied the Hand formula in a number of his opinions.
Legal value of Constitution and Supreme Court precedents In June 2016, Posner was criticized by right-wing media organizations for a column he wrote for Slate in which he stated, "I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation."
He has called his approach to judging pragmatic. "I pay very little attention to legal rules, statutes, constitutional provisions. ... A case is just a dispute. The first thing you do is ask yourself—forget about the law—what is a sensible resolution of this dispute? The next thing ... is to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. And the answer is that's actually rarely the case. When you have a Supreme Court case or something similar, they're often extremely easy to get around."
Abortion Posner has written several opinions sympathetic to abortion rights, including a decision that held that late term abortion was constitutionally protected in some circumstances.Rubin, Alissa (February 11, 1999) Anti-Abortion Advocates Gain Ground in Late-Term Debate, Los Angeles Times
In November 2015, Posner authored a decision in Planned Parenthood of Wisconsin v. Schimel striking down regulations on abortion clinics in Wisconsin. He rejected the state's argument that the laws were written to protect the health of women and not to make abortion more difficult to obtain. Accusing the state of indirectly trying to ban abortions in the state Posner wrote, "They [Wisconsin] may do this in the name of protecting the health of women who have abortions, yet as in this case the specific measures they support may do little or nothing for health, but rather strew impediments to abortion."
Animal rights Posner rejects an ethic of strong animal rights on pragmatic grounds (where such an ethic posits the moral irrelevance of species membership). He recognizes the philosophical force of arguments for strong animal rights, but maintains that human intuition about the paramount value of human life makes it impossible to accommodate an ethic of strong animal rights. Posner, a self-avowed moral anti-realist, does not present his critique of strong animal rights as a deductive proof. Instead, he highlights the practical importance of intuition and emotion over abstract argument.
In a 2000 Yale Law Journal book review on the title "Rattling the Cage" by Steven M. Wise, Posner again criticized the legal notion of animal rights. In the review, Posner argues that Wise's approach, using the cognitive ability of animals compared to that of very young normal human beings as a basis for rights-worthiness, is arbitrary and in contrast with major traditional and contemporary philosophies (including the theology of Thomas Aquinas for one and utilitarianism for another). In addition, he points out that this basis for rights has problematic implications—including that it might soon make some computers more worthy of rights than some humans, a conclusion he calls absurd. Posner goes on to reason that granting human-like rights to animals is fraught with implications which could radically disrupt or devalue the rights of human beings. He alludes to Hitler's fondness for animals as evidence that respect for animals and humaneness toward human beings are not necessarily associated. Arguing that the analogy of animal rights to the civil rights movement lacks imagination and is not very apt, Posner posits that animal welfare might be better protected by other legal models, one example of which would be stronger laws making animals property, since, he asserts, people tend to protect what they own.