SCOTUS Chides Posner/Easterbrook in Jones v. Harris

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2 Responses

  1. MJG says:

    Good post, though not sure if I agree that Posner is as at fault as Easterbrook. Judging requires context, and sometimes that context requires some knowledge of markets and the marketplace (this is a case about whether fees being charged are permissible under the statute). I understand the Supreme Court’s fear that the Easterbrook/Posner approach gives too much power to judges who fancy themselves geniuses on matters outside their competences (especially those not as smart as Frank and Richard), but I don’t see how literally ALL of the market related ideas they discussed are irrelevant.

    Indeed, I found the Jones opinion a little exhausting as it raised factor after factor and then admonished courts to “consider all the factors” without providing much context or guidance. Yes, there is a body of caselaw to work from, but the Supreme Court’s opinion, being untethered from a real case really, could have been a sentence or two, boiling down to consider all the factors. Because there was no context I don’t think Jones v Harris will have much influence at all, other than rebuking a challenge to the test courts have traditionally used.