Richard Posner

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I pay very little attention to legal rules, statutes, constitutional provisions," Judge Posner said. "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, he said, was 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," he said. "When you have a Supreme Court case or something similar, they're often extremely easy to get around. [39]

National security

At the Cybercrime 2020: The Future of Online Crime and Investigations conference held at Georgetown University Law Center on November 20, 2014, Posner, in addition to further reinforcing his views on privacy being over-rated, stated that "If the NSA wants to vacuum all the trillions of bits of information that are crawling through the electronic worldwide networks, I think that's fine. ... Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct," Posner added. "Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you." Posner also criticized mobile OS companies for enabling end-to-end encryption in their newest software. "I'm shocked at the thought that a company would be permitted to manufacture an electronic product that the government would not be able to search" he said. [40]

Newspapers

Posner supported the creation of a law barring hyperlinks or paraphrasing of copyrighted material as a means to prevent what he views as free riding on newspaper journalism. [41] [42] [43] His co-blogger Gary Becker simultaneously posted a contrasting opinion that while the Internet might hurt newspapers, it will not harm the vitality of the press, but rather embolden it. [44]

Posner has expressed concerns, on the blog he contributed to with Gary Becker, that both patent and copyright protection, though particularly the former, may be excessive. He argues that the cost of inventing must be compared to the cost of copying in order to determine the optimal patent protection for an inventor. When patent protection is too strongly in favor of the inventor, market efficiency is decreased. He illustrates his argument by comparing the pharmaceutical industry (where the cost on invention is high) with the software industry (where the cost of invention is relatively low). [45]

Police recording

As part of a three-judge panel on the 7th Circuit in Chicago, weighing a challenge to the Illinois Eavesdropping Act, which bars the secret recording of conversations without the consent of all the parties to the conversation, Posner was to deliver another memorable quote. At issue was the constitutionality of the Illinois wiretapping law, which makes it illegal to record someone without consent even when filming public acts like arrests in public. Posner interrupted the ACLU after just 14 words, stating, "Yeah, I know. But I'm not interested, really, in what you want to do with these recordings of peoples' encounters with the police. ..." Posner continued: "Once all this stuff can be recorded, there's going to be a lot more of this snooping around by reporters and bloggers. ... I'm always suspicious when the civil liberties people start telling the police how to do their business." [46] The 7th Circuit upheld the challenge, 2–1, striking down the Eavesdropping Act, but Posner wrote a dissenting opinion.

Prisoners

In a dissent from an earlier ruling by his protégé 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." [13] [47]

Race and public education

Posner's views of public education policy are informed by his view that groups of students differ in intellectual ability, and therefore, that it is faulty to impose uniform educational standards on all schools. His view in this regard is undergirded by his view that different races differ in intelligence. (However, Posner says that he thinks it is "highly unlikely" that these differences are rooted in genetics, rather than environment.)

In a blog post, Posner wrote, "I suggest that the only worthwhile reforms of teacher compensation are raising teacher wages uniformly, providing recognition and modest bonuses for outstanding teachers, and increasing hiring standards." [48] In the same post, he wrote, "I am not clear what we should think the problem of American education (below the college level) is. Most children of middle-class ... Americans are white or Asian and attend good public or private schools, usually predominantly white. The average white IQ is of course 100 and the Asian (like the Jewish) almost one standard deviation higher, that is, 115. The average black IQ is 85, a full standard deviation below the white average, and the average Hispanic IQ has been estimated recently at 89. Black children in particular often come from disordered households, which has a negative effect on ability to learn and perhaps indeed on IQ. ... Increasingly, black and Hispanic students find themselves in schools with few white or Asian students. The challenge to American education is to provide a useful education to the large number of Americans who are unlikely to benefit from a college education or from high school courses aimed at preparing students for college."

Same-sex marriage

In September 2014, Posner authored the opinions in the consolidated cases of Wolf v. Walker and Baskin v. Bogan challenging Wisconsin and Indiana's state level same-sex marriage bans. The opinion of the three-judge panel on the 7th Circuit Court of Appeals ruled that Indiana and Wisconsin's bans on same-sex marriage were unconstitutional, affirming a lower court ruling. [10] During oral arguments, Wisconsin's attorney general cited tradition as a reason for maintaining the ban, prompting Posner to note that: "It was tradition to not allow blacks and whites to marry – a tradition that got swept away." Though Posner argued in his 1992 book Sex and Reason that prohibitions against gay marriage were rationally justified, he held in the 2014 cases that the same-sex marriage bans were both "a tradition of hate" and "savage discrimination". [49] Posner wrote the opinion for the unanimous panel, finding the laws unconstitutional under the Equal Protection Clause. The Supreme Court then denied writ of certiorari and left Posner's ruling to stand.

Torture

When reviewing Alan Dershowitz's book, Why Terrorism Works: Understanding the Threat, Responding to the Challenge, Posner wrote in the September 2002 The New Republic , "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." [50]

Judicial career

Posner is one of the most prolific legal writers, through both the number and topical breadth of his opinions, to say nothing of his scholarly and popular writings. [51] Unlike many other judges, he writes all his own opinions. [13] Nobel Laureate economist Robert Solow says that Posner "is an apparently inexhaustible writer on ... nearly everything. To call him a polymath would be a gross understatement. ... Judge Posner evidently writes the way other men breathe", though the economist describes the judge's grasp of economics as, "in some respects, ... precarious." [52]

In 1999, Posner was welcomed as a private mediator among the parties involved in the Microsoft antitrust case. [15]

A study published by Fred Shapiro in the University of Chicago's The Journal of Legal Studies found Posner is the most-cited legal scholar of all time by a considerable margin, as Posner's work has generated 7,981 cites compared to the runner-up Ronald Dworkin's 4,488 cites. [2] Aside from the sheer volume of his output, Posner's opinions enjoy great respect from other judges, based on citations, and within the legal academy, where his opinions are taught in many foundational law courses.

Notable cases

In his decision in the 1997 case State Oil Co. v. Khan , Posner wrote that a ruling 1968 antitrust precedent set by the Supreme Court was "moth-eaten", "wobbly", and "unsound". [13] Nevertheless, he abided by the previous decision with his ruling. [13] 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 criticism and his decision to abide by the ruling until the Court decided to change it. [53]

Tort law

In Indiana Harbor Belt Railroad Co. v. American Cyanamid Co. (1990), Posner lowered the standard of legal liability a railroad faced for a hazardous waste spill. [54] [55] The case became a staple of first year torts courses taught in American law schools, where the case is used to address the question of when it is better to use negligence liability or strict liability. [56]

In 1999, Posner applied the lex loci delicti commissi rule on choice of law rather than the Restatement of Torts, Second when rejecting a claim by an Illinois dentist who slipped and fell in Acapulco, Mexico. [57] In 2003, Posner affirmed a punitive damages award of 37.2 times the compensatory damages guests won from a bedbug infested Motel 6. [58] In 2003, Posner found that co-workers who did not prevent a hypoglycemic diabetic's fatal attempt to drive himself home violated no duty to rescue. [59]

Contract law

In Morin Building Products Co. v. Baystone Construction, Inc. (1983), Posner held that the Uniform Commercial Code presumes contracts impose an objective standard upon what would subjectively be illusory promises. [60] In 1987, Posner dissented when Judges Frank H. Easterbrook, joined by Richard Dickson Cudahy, found that a stockbroker could sue his former employer under SEC Rule 10b-5 after he quit shortly before the firm's lucrative unannounced merger. [61] [62] In 1990, Posner found that Delaware corporate law did not permit an airline's board from adopting a poison pill provision that encouraged its machinists to take strike action if its pilots' takeover attempt succeeded. [63] In 1991, Posner held that good faith performance is a factual question of the defendant's state of mind that must be proven at trial. [64]

Civil rights

In 1984, Posner wrote for the en banc circuit when it held that a consent decree regulating law enforcement Red Squads did not apply to FBI terrorism investigations, over the dissent of Judge Richard Dickson Cudahy. In January 2001, Posner loosened that consent decree to allow the Chicago Police Department to conduct counterterrorism operations. [65]

In United States v. Marshall (1990), Posner dissented when Frank H. Easterbrook, writing for the en banc circuit, held that the punishment for possession of LSD is determined by the weight of the carrier it is found within. [66] The circuit's judgment was then affirmed by the Supreme Court of the United States. [67]

In 1995, Posner, joined by Judge Walter J. Cummings Jr., affirmed an injunction blocking Illinois from closing schools on Good Friday as a violation of the Establishment Clause, over the dissent of Judge Daniel Anthony Manion. [68] In 2000, Posner found that partners at a big law firm could be considered employees with regard to the Age Discrimination in Employment Act of 1967. [69] Posner found that secondary liability attaches to a file sharing service for contributory copyright infringement in In re Aimster Copyright Litigation (2003). [70]

Awards and honors

A 2004 poll by Legal Affairs magazine named Posner as one of the top twenty legal thinkers in the U.S. [71]

In March 2007, the Harvard Law Review dedicated an issue of faculty written case comments in tribute of Judge Posner. [72] In 2008, the University of Chicago Law Review published a commemorative issue: "Commemorating Twenty-five Years of Judge Richard A. Posner." [73] One of Posner's former clerks, Tim Wu, calls Posner "probably America's greatest living jurist." [51] 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." [74] 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. [13]

Personal life

Posner and his wife, Charlene Horn, have lived in Hyde Park, Chicago, for many years. His son Eric Posner is also a prominent legal scholar and teaches at the University of Chicago Law School. Posner is a self-described "cat person" and is devoted to his Maine Coon, Pixie. [75] Posner appeared with his previous cat, a Maine Coon named Dinah, in a photograph accompanying a lengthy profile (of Posner) in The New Yorker in 2001. [76] He has been known to illustrate legal points in his opinions with elaborate cat-related metaphors and examples. [77]

Selected works

Books

Richard Posner
Richard Posner at Harvard University.jpg
Chief Judge of the United States Court of Appeals for the Seventh Circuit
In office
August 1, 1993 August 1, 2000
External video
Nuvola apps kaboodle.svg Interview with Posner on An Affair of State: The Investigation, Impeachment and Trial of President Clinton conducted by Milt Rosenberg for "Extension 720", WGN Radio, September 22, 1999, C-SPAN
Nuvola apps kaboodle.svg Interview with Posner on Breaking the Deadlock conducted by Milt Rosenberg for "Extension 720", August 23, 2001, C-SPAN
Nuvola apps kaboodle.svg Booknotes interview with Posner on Public Intellectuals: A Study of Decline, June 2, 2002, C-SPAN
Nuvola apps kaboodle.svg Presentation by Posner on Catastrophe: Risk and Response, March 11, 2005, C-SPAN
Nuvola apps kaboodle.svg Panel discussion including Richard Posner, featuring discussion of his book The Little Book of Plagiarism, March 14, 2007, C-SPAN

Articles

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References

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  31. "But I do not agree that we have a duty to (the other) animals that arises from their being the equal members of a community composed of all those creatures in the universe that can feel pain, and that it is merely "prejudice" in a disreputable sense akin to racial prejudice or sexism that makes us "discriminate" in favor of our own species. You assume the existence of the universe-wide community of pain and demand reasons why the boundary of our concern should be drawn any more narrowly. I start from the bottom up, with the brute fact that we, like other animals, prefer our own—our own family, the "pack" that we happen to run with (being a social animal), and the larger sodalities constructed on the model of the smaller ones, of which the largest for most of us is our nation. Americans have distinctly less feeling for the pains and pleasures of foreigners than of other Americans and even less for most of the nonhuman animals that we share the world with. Now you may reply that these are just facts about human nature; that they have no normative significance. But they do. Suppose a dog menaced a human infant and the only way to prevent the dog from biting the infant was to inflict severe pain on the dog—more pain, in fact, than the bite would inflict on the infant. You would have to say, let the dog bite (for "if an animal feels pain, the pain matters as much as it does when a human feels pain," provided the pain is as great). But any normal person (and not merely the infant's parents!), including a philosopher when he is not self-consciously engaged in philosophizing, would say that it would be monstrous to spare the dog, even though to do so would minimize the sum of pain in the world. I do not feel obliged to defend this reaction; it is a moral intuition deeper than any reason that could be given for it and impervious to any reason that you or anyone could give against it. Membership in the human species is not a "morally irrelevant fact," as the race and sex of human beings has come to seem. If the moral irrelevance of humanity is what philosophy teaches, and so we have to choose between philosophy and the intuition that says that membership in the human species is morally relevant, then it is philosophy that will have to go." - Animal Rights Debate: Peter Singer vs Richard Posner" Originally Published on Slate magazine . Retrieved May 7, 2021.
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Further reading


Legal offices
Preceded byJudge of the United States Court of Appeals for the Seventh Circuit
1981–2017
Succeeded by
Preceded byChief Judge of the United States Court of Appeals for the Seventh Circuit
1993–2000
Succeeded by