Richard Posner, called by many “the father of Law and Economics,” has passed. He was 87. Posner is one of the most prolific and influential legal intellectuals in history. I have taught his economic theories for decades. His contribution to American law is immense and generational. Both a towering academic and judicial figure, Posner changed our understanding of the law and left an unparalleled corpus of work, including dozens of major cases and books.
I had just come back from a trip when one of my torts students came up to me at the start of class to tell me that Richard Posner had passed. I cannot say I was surprised. He was struggling for years with health issues, but I felt a great sense of loss that is shared by thousands. It is hard to express what a vacuum has been left by his passing.
I first met Posner as an undergraduate student at the University of Chicago decades ago. Over time, my views on the law would evolve, including an embrace of economic analysis. Posner generated books at a furious pace. It reflected his explosive brilliance and intellectual appetite. His books on economics would stretch across fields from torts to contracts to constitutional law. Even altruism and sex would become subjects of his keen and penetrating analysis.
When President Ronald Reagan appointed him to the United States Court of Appeals for the Seventh Circuit in 1981, many of us thought it might be a waste of one of the greatest intellectual minds in American legal history. However, in his almost 40 years on the Court, Posner would leave an equally powerful legacy in opinions. He is the most cited legal scholar in the 20th Century and his theories have been incorporated into countless opinions and academic publications.
Posner’s brilliance was obvious and inexhaustible. He was the head of the Harvard Law Review and graduated at the top of his class. He clerked on the Supreme Court before joining the Stanford and then the Chicago law faculties.
Ironically, viewed as a political conservative, Posner came from parents who were Communists and clerked for the iconic liberal justice, William Brennan.
Posner would become one of the founders of the prestigious Journal of Legal Studies in 1972.
I have always loved the fact that these Jewish refugees from Romania would come to this country with virtually nothing, but live to see their son rise to become one of the most respected intellectuals in the world. While he would reject their political views, his career is also a testament to them. (His son, Eric, has continued his legacy as a law professor at the University of Chicago).
I had the honor of interacting with Posner over the years, including a couple of speaking engagements. You rarely had a casual conversation on the law with Posner. He was blazingly bright and inexhaustible. I loved that intensity, which never diminished, as well as an uncompromising honesty that could be acerbic and pointed.
For generations, Richard Posner has been the North Star on the incorporation of efficiency principles in the law. He showed how such principles could offer a common and workable basis for legal doctrines. While morality is varied and hotly debated, economic theory offered an objective standard to measure different rules.
Posner argued that “the economic norm of ‘wealth maximization’ provides a firmer basis for a normative theory of law than does utilitarianism” or ethical theories. He was fearless and direct in his writings. In The Problematics of Moral and Legal Theory, he wrote:
“[M]orality is local. There are no interesting moral universals. There are tautological ones, such as “Murder is wrong,” where “murder” means “wrongful killing,” and there are a few rudimentary principles of social cooperation – such as “Don’t lie all the time” or “Don’t break promises without any reason” or “Don’t kill your relatives or neighbors indiscriminately” – that may be common to all human societies. If one wants to call these rudimentary principles the universal moral law, fine; but as a practical matter, no moral code can be criticized by appealing to norms that are valid across cultures, norms to which the code of a particular culture is a better or a worse approximation. Those norms, the rudimentary principles of social cooperation that I have mentioned, are too abstract to serve as standards for moral judgment.”
His writings challenged calcified notions and often irritated many in academia and in the courts. He was always his own man, willing to confront what he viewed as hypocrisy on the left and the right. Many, including his admirers, found themselves on the defense in his writings. However, he was universally respected for his brilliance and his intellectual integrity.
It is very hard to see the passing of such a genius, but our sorrow is tempered by our gratitude for what he left in his wake. Richard Posner will continue to shape law students and lawyers for generations to come. He was irreplaceable and will be greatly missed.
Rest in peace and well done.
I am amazed that Turley didn’t comment about Posner’s ruling that forced IL to adopt a CCW permit
Posner On Originalism:
Originalism “is a magnificent disguise. The judge can do the wildest things, all the while presenting himself as the passive agent of the sainted Founders — don’t argue with me, argue with Them.”
Remarks like that are why you should not trust Posner.
“We wrote the Constitution and Bill of Rights to be absolute and strictly adhered to with even the most infinitesimal amendments allowed only through the process prescribed in Article 5.”
– The American Founders and Framers
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This fine fellow, like countless others, has been complicit in the corruption of our nation and in the abandonment of the fundamental law upon which it was founded.
https://www.abajournal.com/news/article/posner_says_supreme_court_is_awful_top_two_justices_are_okay_but_not_great
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Man left a bad impression.
Judge Posner’s body of work will be cited for years to come. Incisive, accurate, and, at times, wry. A giant of the law.
In law school (2000-2002) I glommed on to law and economics as a haven from what I saw as the legal incoherence of the various critical studies theories. It has served me well, and Judge Posner was, as the Prof states, the leading light. Thank you sir.
Well
there is that virtue of industriousness.
Posner argues that moral principles are “local” and legal principles are “universal”. I think this is wrong. Legal principles are surely as local as moral principles. Compare the legal systems of any two nations: e.g., Russia and the United States. Even within the United States, legal principles are local to some extent. Compare, e.g., the tort systems of Virginia and California. Even so basic a legal principle as due process of law varies widely in its particular details from jurisdiction to jurisdiction. That said, I agree that Posner is a gigantic figure in American law.
He is the most cited legal scholar in the 20th Century…
That is true in university legal circles but not in Federal Court rulings. Antonin Scalia has that distinction. Alas Posner salivated at the opportunity to skewer Scalia because the former was an appellate judge while the latter was a SCOTUS Justice. Posner authored numerous legal opinions in the New Republic, that bastion of
conservativeprogressive left-leaning sinkhole.Posner’s brilliance was obvious and inexhaustible. He was the head of the Harvard Law Review and graduated at the top of his class. He clerked on the Supreme Court for Justice William Brennan before joining the Stanford and then the Chicago law faculties.
Facts matter. You failed to mention he clerked for Brennan, a leader of the liberal wing of SCOTUS. Although I have disdain for the liberal/conservative ideological labels, Posner was a progressive and relished his self-described label of “pragmatist” which meant moral relativist.
He denounced Heller over and over and over again and promoted “judicial interpretation” so that Judges could rule as they saw fit independent of the US Constitution, which of course the legal academy applauded.
newrepublic.com/article/90832/gunfight-adam-winkler
newrepublic.com/article/115047/scalias-legal-reasoning-incoherent
newrepublic.com/article/106441/scalia-garner-reading-the-law-textual-originalism
newrepublic.com/article/115047/scalias-legal-reasoning-incoherent
newrepublic.com/article/107549/richard-posner-responds-antonin-scalias-accusation-lying
newrepublic.com/article/107001/how-nuanced-justice-scalias-judicial-philosophy-exchange
newrepublic.com/article/62124/defense-looseness
However, he was universally respected for his brilliance and his intellectual integrity.
Your article is an example of modern hagiography. The man had an axe to grind. Period.
It is very hard to see the passing of such a genius, but our sorrow is tempered by our gratitude for what he left in his wake
He left in his wake a progressive legal academy which now dominates American law schools. Happily SCOTUS ignores the law academy. Here are rankings of legal “scholars”, with the top 4 listed. All of them left of center. Scalia was ranked 39. Professor Turley didn’t make the cut
A. Most-Cited Legal Scholars
lawreview.uchicago.edu/print-archive/most-cited-legal-scholars-revisited
You and Posner share one philosopical trait: moral relativism. To wit his book crowing therein:
Richard A. Posner, “The Problematics of Moral and Legal Theory,” 111 Harvard Law Review 1637 (1998).
An example of Posner’s judicial recklessness:
In Defense of Looseness
The majority opinion, by Justice Antonin Scalia, concluded that the original, and therefore the authoritative, meaning of the Second Amendment is that Americans are entitled to possess pistols (and perhaps other weapons) for the defense of their homes. Scalia’s entire analysis rests on this interpretive method, which denies the legitimacy of flexible interpretation designed to adapt the Constitution (so far as the text permits) to current conditions.
newrepublic.com/article/62124/defense-looseness
Posner finally confesses his legal “philosophy”:
An Exit Interview With Richard Posner, Judicial Provocateur
In emphasizing social utility over, say, principles of fairness and equality, he gained a reputation as a cold, calculating conservative.
That changed over time, and his recent opinions on voter ID laws, abortion, same-sex marriage and workplace discrimination based on sexual orientation have been decidedly liberal.
….
He called his approach to judging pragmatic. His critics called it lawless. “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.”
archive.ph/7QYcc
Our legal system is in shambles. Posner and his ilk did that.
The last is a strange description of judicial decision-making, especially for an appellate judge, who is asked to resolve questions of law.
The Posner-Epstein Debates: Pragmatism vs.Principle.
When listening to the debates years ago, I could not tell where Posner stood on the ideological scale. He was to the left of Epstein, but I don’t think one could call him a leftist, despite your comments that might make him appear to be less of a conservative, Estovir.
RIP Judge Posner
All I know for sure is that, generally, he did not care for Administrative Law Judge decisions
R.I.P. ~ Another reminder that life is short and it goes by quick.
This is something I thought way back in the early 2000s, perhaps others, as well: there is no one to pass the torch to today. Every one of these passings is like another tiny cut. Our oppositional and public voices are more important than ever, and those of us over 45 may have to carry the burden for the remainder of our lives. That is the level of stupidity we face, and even though a lot of people who are actually ethical but ascribe to the fairy dust narrative have good intentions – it doesn’t matter when we are trapped by an iron fist, one that we voted for. We learned absolutely zero from the 20th century, and we made sure our children didn’t, either.
There’s abundant opportunity to learn from mistakes, James.
Well done Professor. A fitting tribute to an intellectual giant.
As a Kantian, I see Posner as the Neocon’s license to wage war against the people they’re charged with protecting under the guise of “efficient breach of [social] contract.”
Pisner gave us the universal principle of same sex marriage. RIP
That is an outstanding tribute. Obviously. It is rare for many of us to come in contact with real intellectual giants who can shape our thought and process in our chosen fields. Some leave you breathless at the acuity of their minds and the clearness of their conclusions and thoughts but they lead us in so many ways. I have been lucky to meet a few in the medical field over the years and felt enlightened by the their brilliance and contributions and awed at the wide range and effect that they can have in your own field as well as in some unrelated fields.
It is difficult to be so close to such brilliance and then step back and wonder why we can’t all see things with such clarity. It is a humbling experience but enlightening at the same time. It certainly makes for an exciting experience. I always treasured those experiences.
GEB
“It is rare for many of us to come in contact with real intellectual giants…” You obviously have not.
You would not know a genius if he smacked you in the face. You are all mouth and no thought and you prove that every day.
Posner was a legend. The jurist with the MOST CITED cases in US legal history. He had authored and been on the panel of more apellate cases than any other judge. We, me and my fellow law students, were amazed by Posner, and that was decades ago. We could never figure out why he was never elevated to the SCOTUS. Because of his volumous legal output, not even counting his numerous books, we wondered how many clerks he had working for him. His fellow 7th Circuit companion Easterbrook was no slouch either. RIP 🙏💖🙏
Hullbobby is likely right. Through sheer brilliance, Richard Posner raised the bar for legal scholarship, making it far more demanding to become a true scholar of the law. Unable to keep pace with that rigor, many academics have pivoted to softer terrain, most notably by replacing the concrete standard of “law” with the subjective ideal of “justice.” Changing that single word has fundamentally altered the courts.
A similar shift occurred in scientific studies roughly fifty years ago. For decades, until recently, logical positivism was subsumed by postmodernism, which elevated emotional evaluation to the same footing as empirical logic and scientific method. We see this trend continuing today in modern physics, where certain interpretations equate the physical universe with human observation, effectively attributing consciousness and intentionality to the cosmos. Suddenly, every armchair psychologist is a cosmologist – just like that.
Ultimately, these shifts serve to lessen the burden of intellectual rigor required to achieve even a glimmer of genuine understanding. All this, in my opinion, at least.
Nice tribute to excellence, embodied in a single person.
Hum… how can anything be” “likely right”? It’s right or its wrong. Retired college prof huh? And yet you can’t name one achievement by the guy. More like retired retard.
I first encountered Posner’s legal arguments in an Economics class taught by Prof Yale Brozen at The University of Chicago Graduate School of Business (GSB) in the Fall quarter of 1968, several years before Posner joined the Law School faculty. I distinctly remember that the discussions centered around antitrust, monopoly, and oligopoly. We were fortunate that economics and law were broadly incorporated in the rigorous empirical research and education at The University of Chicago. I would have pursued the dual MBA and JD program had not the draft and compulsory employment in the US Army interrupted my graduate studies. RIP with great thanks and admiration from this old student.
Pisner was a communist, a fascist. RIP
No mention of any actual legal achievements?
Posner is the most cited judge in history. If you knew anything about law you would know this.
If you knee anything about comments, you would respond with facts instead of stupidity. You’re not even a lawyer, couldn’t pass the bar.
If you knee anything about comments, you would respond with facts instead of stupidity. You’re not even a lawyer, couldn’t pass the bar.
You knee it! 😹😹😹 You missed your calling… As a stand-up comedian ⬆️
You’re welcome. Your calling? Would that be …. Walmart employee.
Same sex marriage was one of Pisner’s achievements, anon. RIP
Unfortunately today’s students won’t study Posner, won’t face ideas that their professors don’t agree with and won’t debate as we understand debate.
Great tribute Professor Turley and it seems only right that you would have introduced your students to this giant.
What a stupid comemnt.
“Unfortunately today’s students won’t study Posner,” How can you make such an absurdly ignorant comment?