The Encyclopedia of Libertarianism

Posner, Richard A. (1939-)

Richard A. Posner is a judge and a legal theorist. Posner is a judge of the U.S. Court of Appeals for the Seventh Circuit, a senior lecturer at the University of Chicago Law School, and the leader of the modern law and economics movement.

Posner held a variety of positions in the Johnson administration and taught at Stanford University before joining the Chicago faculty in 1969. At Chicago, he participated in George Stigler’s famous Industrial Organization Workshop, and he developed close ties with many members of the economics department. He soon began using the tools of neoclassical economics to analyze legal issues, and in 1973, Posner published his textbook, Economic Analysis of Law. That book has become a classic and is now in its sixth edition.

In the opening chapter of Economic Analysis of Law, Posner writes: “Many lawyers still think that economics is the study of inflation, unemployment, business cycles, and other mysterious macroeconomic phenomena remote from the day-to-day concerns of the legal system. Actually, the domain of economics is much broader.” Economics, he argues, “is the science of rational choice in a world—our world—in which resources are limited in relation to human wants. The task of economics, so defined, is to explore the implications of assuming that man is a rational maximizer of his ends in life, his satisfactions—what we shall call his ‘self-interest.’ ” Such a statement may seem obvious to most economists. However, as Posner notes, it will be quite surprising to many students of the law, as will the implications that follow from applying economics to legal issues.

Many legal theorists have charged that the law and economics approach ignores issues of “justice.” But if one equates justice with efficiency—as Posner often seems to do—then such criticism is without merit. After all, efficiency eliminates waste, and “in a world of scarce resources waste should be regarded as immoral,” Posner writes. From this viewpoint, a whole host of socially disapproved—and currently unlawful actions—cannot automatically be deemed unjust. Posner notes:

It is not obviously inefficient to allow suicide pacts; to allow private discrimination on racial, religious, or sexual grounds; to permit killing and eating the weakest passenger in the lifeboat in circumstances of genuine desperation; to force people to give self-incriminatory testimony; to flog prisoners; to allow babies to be sold for adoption; to allow the use of deadly force in defense of a pure property interest; to legalize blackmail; or to give convicted felons a choice between imprisonment and participation in dangerous medical experiments.

Posner’s unorthodox and often controversial approach to the law is not limited to his academic writings. As a judge, he demonstrates much less reverence for legal precedent than most of his colleagues. Instead, Posner tries to reach “pragmatic” decisions—decisions that are the “most reasonable, all things considered, where ‘all things,’ include both case-specific and systemic consequences.” In a series of books beginning in the early 1990s, Posner has made the case for pragmatism, concluding that it is the “best guide to the improvement of judicial performance.”

Posner has written more than 30 books on a huge variety of topics. Some have argued that the substantial number of publications that Posner has produced comes at the expense of precision. For instance, his 2001 book on public intellectuals was widely criticized for employing sloppy methodology. But it seems that Posner is more interested in raising interesting questions than in providing airtight answers—and, in this regard, few can doubt his success. Posner is the most frequently cited living legal theorist.

The University of Chicago Law School sponsors two highly regarded journals—the Journal of Legal Studies and the Journal of Law and Economics—that often feature recent scholarship in the field of law and economics, including some of Posner’s more famous papers. In addition, several of Posner’s colleagues at the University of Chicago Law School also work within the law and economics tradition, including William Landes, Kenneth Dam, and Ronald Coase. Indeed, this approach to law is now almost half a century old. Posner has written that the modern law and economics movement began with Guido Calabresi’s famous 1961 article on tort law and Coase’s seminal 1960 paper on social cost.

 

Further Readings

MacFarquhar, Larissa. “The Bench Burner.” The New Yorker 10 (December 2001): 78–89.

Posner, Richard A. Antitrust Law: An Economic Perspective. Chicago: University of Chicago Press, 1976.

———. Economic Analysis of Law. 6th ed. New York: Aspen, 2002.

———. The Economics of Justice. Cambridge, MA: Harvard University Press, 1981.

———. Law, Pragmatism, and Democracy. Cambridge, MA: Harvard University Press, 2003.

Originally published .