Eminent Domain

I talk about Judge Richard Posner a lot on here. He's a prolific writer (and blogger), a great legal thinker, and a respected federal judge. I recently stumbled onto this profile of Judge Posner that was in Slate during the Microsoft mediation in the late 90's. It's a pretty good introduction to the quirks of one of the most interesting judges in America...

Posner is the high prophet of "law and economics," a school of thought that derives legal principles from economic analysis, typically pointing at some established legal doctrine and declaring it nonsense.

Posner wrote the book on Law and Economics, literally. Law and Economics is now a course taught at most law schools, including Marquette. I've had older professors talk about how differently we view the law now, in light of the law and economics movement.

More from the article...

Some of Posner's greatest intellectual disdain is reserved for the "internationalists, multiculturalists, environmentalists, [and] sometimes vegetarians" on the academic left. He has little time for those who "pity murderers (and penguins, and sea otters, and harp seals) more than fetuses." But Posner's early resume reads more like that of a vegetarian than a libertarian. He clerked for liberal William Brennan on the U.S. Supreme Court in 1962 at the height of Warren court activism and later worked at the Justice Department under Solicitor General Thurgood Marshall.

Posner's explanation for his change in perspective is disappointingly coventional: He says he was put off by the picketing, sit-ins, and violence he witnessed at Stanford while teaching there in the late '60s.

It's interesting that events like those can have such an effect on a person. I seem to recall Justice Alito mentioning that same campus behavior with disdain during his confirmation hearings.

Posner is famous for his writing...

Ronald Reagan appointed Posner to the Seventh Circuit in 1981, and he started producing opinions like one in 1986 declaring that an injunction should be granted "if P x H[p] > (1-P) x H[d]." Not surprisingly, critics find Posner's jurisprudence bloodless and ultimately cruel, chasing the logic of free-market capitalism right off the edge of a cliff. A notorious 1978 article suggested making it legal for parents to auction off their unwanted babies to the highest bidders. An essay on rape reads almost like a parody of the substitution of economic for moral reasoning. ("[A]llowing rape would lead to heavy expenditures on protecting women, as well as expenditures on overcoming those protections. The expenditures would be offsetting, and to that extent socially wasted.")

Bloodless and cruel? Maybe. Trailblazing and responsible for a paradigm shift in the law? Definitely.

How much influence does Judge Posner have? Well...

His appellate opinions contain long expository "asides" when he disagrees with the law as handed down by the Supreme Court. A 1996 opinion in which he felt forced to apply an antitrust doctrine he disliked includes the snide observation: "[i]f this is what the [Supreme] Court believes--and it does appear to be the Court's current position, though not one that is easy to defend in terms of economic theory or antitrust policy ..." His expository aside was adopted as the law of the land by the Supreme Court in 1997.

It's gotta be a great feeling to nudge the Supreme Court in your direction.