Category: Constitutional Law

Posner
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On Judicial Reputation: More Questions for Judge Posner

Successful people often are insecure (though they may hide their insecurity behind a facade of bluster); it is what drives them to success. – Richard Posner (1994)

We are experts in self-presentation, in acting a part to further our aims and interests. We have, all of us, a public relations strategy.  Richard Posner (May 5, 2011)

I have never yearned for greatness!  Richard Posner (November 26, 2014)

This is the eighth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, the sixth here, and the seventh one here.

In Judge Richard Posner’s The Essential Holmes, he echoed a line from Oliver Wendell Holmes concerning John Marshall. This is that line: “A great man represents a great ganglion in the nerves of society, or to vary the figure, a strategic point in the campaign of history, and part of his greatness consists in his being there.”

Holmes’s resort to the word “ganglion” (meaning a swelling, or mass of nerve cell bodies, or a nerve cell cluster) is rather opaque — his use of the term is not readily apparent. But to tease the Holmesian metaphor out a bit, part of a judge’s greatness depends on a willingness and ability to successfully affect or change the nerve center of a society. In other words, a true capacity to alter something central. The alternative Holmesian account of greatness hinges on a combination of strategy and timing (or one might say Fortuna). That is, judicial reputation depends on a special ability to seize the perfect moment and act boldly – the case of John Marshall, circa, 1803, comes immediately to mind.

Surprisingly, to talk with Richard Posner one might assume from what he says in his all-too-causal manner that he has little or no interest in greatness or judicial reputation as it pertains to him. Strange from a man who has written on book on judicial reputation (not to be confused, he tells us, with judicial greatness) and who in so many ways seems to have a will for greatness. But don’t believe it, he admonishes us emphatically: “I have never yearned for greatness!”  

According to Judge Posner, Cardozo was a highly reputed jurist and Holmes was a great jurist. But what of Posner? Silence. Apparently, he doesn’t care to discuss it. Why? Perhaps because as a maverick jurist (and he is surely that), he cannot appear to seek public approval. And yet, if one were to invoke his own criteria for measuring judicial reputation, Judge Posner would rank quite high. (See e.g., Ronald Collins & David O’Brien, “Gauging Reputations, National Law Journal, pp. 13-14, April 1, 1991, and Lawrence Cunningham, “Cardozo and Posner: A Study in Contracts,” William & Mary Law Review (1985).) Fine, he might say, brushing it off with a disinterested look. And what of his legal legacy? Of that he claims to care not: “I have absolutely no interest in my posthumous reputation,” he assures us.

So there you have him: a great jurist (or should I say a highly reputed jurist?) who really does not care a bit about being seen as great. Speaking of that subject, see Richard Posner, “The Hand Biography and the Question of Judicial Greatness,” 104 Yale Law Journal 511, (1994).

All that said, in what follows, Judge Posner says a few things about these matters in connection with various American jurists.

Note: Some of the links used below will open in Firefox and Chrome but not in Safari.

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Max Lerner

Max Lerner

Question: In his book Nine Scorpions in a Bottle (1994), the late Max Lerner asserted: “There is no recipe for judicial greatness. Yet, if hard-pressed, I should settle for someone with a flexible mind, a compassion for the walking wounded, a refusal to be cowed by power, a capacity to live with the contradictions of life and to separate the permanent from the transient.” And then he added: “That is what I should call a passionately judicial temperament, and only a few have had it.” Before we turn to your own particular views on the subject, what is your opinion of Mr. Lerner’s recipe (albeit tentative) for judicial greatness?

Posner: [As for Lerner’s formula for greatness, I find it] a little puffed up. Forget greatness. A very good judge is a judge who is well educated and intelligent, hard working, willing to write his own opinions, curious about the real-world activities, transactions, and institutions out of which the cases he hears arise, collegial, and aware (so far as anyone can be aware) of his limitations and of the influences that play on him as a result of his upbringing, ideology, career, and temperament.

Posner on the Criteria for Judicial Greatness

For one thing the criteria of judicial greatness are contested. Some might insist that a judge’s greatness consists in the “rightness” of his decisions as judged by the test of time. I think that this is too demanding a standard. Most judicial decisions, even of the agreed-to-be-the-greatest judges, like most scientific discoveries, even of the universally acknowledged greatest scientists, usually are superseded and in that sense eventually proved “wrong.” I believe that the test of greatness for the substance of judicial decisions, therefore, should be, as in the case of science, the contribution that the decisions make to the development of legal rules and principles rather than whether the decision is a “classic” having the permanence and perfection of a work of art. . . Creativity is .  . . one possible criterion ofjudicial greatness. Another . . . . is the gift of verbal facility that enables a familiar proposition to be expressed memorably, arrestingly, thus enforcing attention, facilitating comprehension, and, often, stimulating new thought (in which case the expressive dimension of judicial greatness merges with the creative). [Source here]

Question: Almost a quarter-century ago you called on scholars to pay considerably more attention to “critical judicial study” by way of quantitative analysis of judicial reputation, influence, and achievement. Do you think that call has been heeded?

Posner: A little, not a great deal.

UnknownQuestion: The quantitative analysis you employed in Cardozo: A Study in Reputation (1990) turned largely, and understandably so, on a judge’s reputation within the legal community. But greatness surely extends beyond the confines of that domain and into the larger public realm. How is judicial reputation to be gauged at that macro level? And how does that pursuit of greatness differ, if at all, from one confined to the legal community?

Posner: No one outside the legal profession (with the intermittent exception of politicians) is interested in judges other than Supreme Court Justices. I don’t think it’s healthy for judges to worry about what lay people think of them.

Question: Most judges, you contend, “would rather be regarded as sound than as original, as appliers of the law rather than inventors of it. Judges find it politic to pretend that they are the slaves of the law, never its masters and the competitors of legislators.” If a judge takes that creed of moderation seriously, is such a jurist likely to be heralded as great?

Posner: As I said earlier, forget greatness. The judges who adopt the pretense will be respected by many other judges and applauded by legislators, who don’t like the idea of judges making law, though judges to make a great deal of law.

Question: You have suggested that “rhetorical power may be a more important attribute of judicial excellence than analytical power.” Why? And should that be so?

Posner: The analytical issues presented by cases are rarely complex or difficult, though lawyers and judges and law professors try to make them seem so. The insights of the excellent judges tend to be the result of intuition, experience, and temperament rather than of analysis, and the rhetorical power in which they are expressed are important to the persuasiveness and reception of the insights.

None of the [current Justices] has any empirical, technical background. They’re just humanities majors. Richard Posner, Oct. 23, 2014, University of Chicago Law School remarks.

Question: In terms of his position in American law, what single trait do you think best helps to explain Chief Justice John Marshall’s revered and lasting reputation?

Posner: He had a great deal of common sense and government experience, and he wrote forcefully and lucidly.

Justice Joseph Story

Justice Joseph Story

Question: By the time he died in 1845, Justice Joseph Story published twenty-one books after his three-volume Commentaries on the Constitution of the United States, which was a major legal work for its time and long afterwards. And he authored some important opinions such as Martin v. Hunter’s Lessee (1816), Swift v. Tyson (1842), and Prigg v. Pennsylvania (1842). And yet, today the man and his work seem to be largely forgotten. Why do you suppose that is?

Posner: I don’t know. I’ve never read anything by him. Prompted by your question, I read his opinion in Swift v. Tyson. I thought it was well written, though not as well written as Marshall’s opinions.

[RC: Consider Bernard Schwartz, “Supreme Court Superstars: The Ten Greatest Justices” (1995) (ranking Story as second greatest Justice.]

Question: I was struck by how much the reputational stock of some of the judges and scholars you listed in Tables 1-4 of your Cardozo book has dropped since you published that work in 1990. Is judicial reputation thus akin, at least in some general way, to the rise-and-fall celebrity stardom of, say, the Michael Jackson variety? If so, how does a judge best secure a reputation that lasts over generational time?

Posner: The decline is experienced by almost all judges, simply because law changes as society changes, and the old cases cease to have any relevance. Well-written opinions have the best survival chances, because the quality of the writing is independent of the currency or importance of the issues.

Question: The filaments of Holmes’ thought, you maintain, included “Nietzschean vitalism.” Tell us more about that and why you think it important. Read More

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On Privacy, Free Speech, & Related Matters – Richard Posner vs David Cole & Others

I’m exaggerating a little, but I think privacy is primarily wanted by people because they want to conceal information to fool others. Richard Posner

Privacy is overratedRichard Posner (2013)

 Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct. 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.Richard Posner (2014)

This is the seventh installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, the fifth here, and the sixth one here.

Privacy has been on Richard Posner’s mind for more than three-and-a-half decades. His views, as evidenced by the epigraph quotes above, have sparked debate in a variety of quarters, both academic and policy. In some ways those views seem oddly consistent with his persona – on the one hand, he is a very public man as revealed by his many writings, while on the other hand, he is a very private man about whom we know little of his life outside of the law save for a New Yorker piece on him thirteen years ago.

On the scholarly side of the privacy divide, his writings include:

  1. The Right of Privacy,” 12 Georgia Law Review 393 (1978)
  2. Privacy, Secrecy, and Reputation,” 28 Buffalo Law Review 1 (1979)
  3. The Uncertain Protection of Privacy by the Supreme Court,” 1979 Supreme Court Review 173
  4. The Economics of Privacy,” 71 The American Economic Review 405 (1981)
  5. Privacy,” Big Think (video clip, nd)
  6. Privacy is Overrated,” New York Daily News, April 28, 2014

For a sampling of Judge Posner’s opinion on privacy, go here (and search Privacy)

(Note: Some links will only open in Firefox or Chrome.)

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Privacy – “What’s the big deal?”

Privacy interests should really have very little weight when you’re talking about national security. The world is in an extremely turbulent state – very dangerous. — Richard Posner (2014)

Recently, Georgetown Law Center held a conference entitled “Cybercrime 2020: The Future of Online Crime and Investigations” (full C-SPAN video here). In the course of that event, Judge Posner joined with others in government, private industry, and in the legal academy to discuss privacy, the Fourth Amendment, and free speech, among other things. A portion of the exchange between Judge Posner and Georgetown law professor David Cole was captured on video.

Judge Richard Posner

Judge Richard Posner

Scene: The Judge sitting in his office, speaking into a video conference camera — As he rubbed his fingers across the page and looked down, Posner began: “I was thinking, listening to Professor Cole, what exactly is the information that he’s worried about?” Posner paused, as if to setup his next point: “I have a cell phone – iPhone 6 – so if someone drained my cell phone, they would find a picture of my cat [laughter], some phone numbers, some e-mail addresses, some e-mail texts – so what’s the big deal?”

He then glanced up from the text he appeared to be reading and spoke with a grin: “Other people must have really exciting stuff. [laughter] Could they narrate their adulteries or something like that?” [laughter] He then waved his hands in the air before posing a question to the Georgetown Professor.

“What is it that you’re worrying about?” Posner asked as if truly puzzled.

At that point, Cole leaned into his microphone and looked up at the video screen bearing the Judge’s image next to case reports on his left and the American flag on his right.

Cole: “That’s a great question, Judge Posner.”

Professor Cole continued, adding his own humor to the mix: “And I, like you, have only pictures of cats on my phone. [laughter] And I’m not worried about anything from myself, but I’m worried for others.”

On a more substantive note, Cole added: “Your question, which goes back to your original statement, . . . value[s] . . . privacy unless you have something to hide. That is a very, very shortsighted way of thinking about the value [of privacy]. I agree with Michael Dreeben: Privacy is critical to a democracy; it is critical to political freedom; [and] it is critical to intimacy.”

The sex video hypothetical

And then with a sparkle in his spectacled eye, Cole stated: “Your question brings to mind a cartoon that was in the New Yorker, just in the last couple of issues, where a couple is sitting in bed and they have video surveillance cameras over each one of them trained down on the bed [Cole holds his hands above his head to illustrate the peering cameras]. And the wife says to the husband: ‘What are you worried about if you’ve got nothing to hide, you’ve got nothing to fear.’”

Using the cartoon as his conceptual springboard, Cole moved on to his main point: “It seems to me that all of us, whether we are engaged in entirely cat-loving behavior, or whether we are going to psychiatrists, or abortion providers, or rape crises centers, or Alcoholics Anonymous, or have an affair – all of us have something to hide. Even if you don’t have anything to hide, if you live a life that could be entirely transparent to the rest of the world, I still think the value of that life would be significantly diminished if it had to be transparent.”

Without missing a beat, Cole circled back to his video theme: “Again you could say, ‘if you’ve got nothing to hide, and you’re not engaged in criminal activity, let’s put video cameras in every person’s bedroom. And let’s just record the video, 24/7, in their bedroom. And we won’t look at it until we have reason to look at it. You shouldn’t be concerned because . . .’”

At this point, Posner interrupted: “Look, that’s a silly argument.”

Cole: “But it’s based on a New Yorker cartoon.”

The Judge was a tad miffed; he waved his right hand up and down in a dismissive way: “The sex video, that’s silly!Waving his index finger to emphasize his point, he added: “What you should be saying, [what] you should be worried about [are] the types of revelation[s] of private conduct [that] discourage people from doing constructive things. You mentioned Alcoholics Anonymous . . .”

Cole: “I find sex to be a constructive thing.”

Obviously frustrated, Posner raised his palms up high in protest: “Let me finish, will you please?”

Cole: “Sure.”

Posner: “Look, that was a good example, right? Because you can have a person who has an alcohol problem, and so he goes to Alcoholics Anonymous, but he doesn’t want this to be known. If he can’t protect that secret,” Posner continued while pointing, “then he’s not going to go to Alcoholics Anonymous. That’s gonna be bad. That’s the sort of thing you should be concerned about rather than with sex videos. . . . [The Alcoholics Anonymous example] is a good example of the kind of privacy that should be protected.”

David Cole

Professor David Cole

Privacy & Politics 

Meanwhile, the audience listened and watched on with its attention now fixed on the Georgetown professor.

Cole: “Well, let me give you an example of sex privacy. I think we all have an interest in keeping our sex lives private. That’s why we close doors into our bedroom, etc. I think that’s a legitimate interest, and it’s a legitimate concern. And it’s not because you have something wrong you want to hide, but because intimacy requires privacy, number one. And number two: think about the government’s use of sex information with respect to Dr. Martin Luther King. They investigated him, intruded on his privacy by bugging his hotel rooms to learn [about his] affair, and then sought to use that – and the threat of disclosing that affair – to change his behavior. Why? Because he was an active, political, dissident fighting for justice.”

“We have a history of that,” he added. “Our country has a history of that; most countries have a history of that; and that’s another reason the government will use information – that doesn’t necessarily concern [it] – to target people who [it is] concerned about . . . – not just because of their alcohol problem [or] not just because of their sexual proclivities – but because they have political views and political ideas that the government doesn’t approve of.”

At this point the moderator invited the Judge to respond.

Posner: “What happened to cell phones? Do you have sex photos on your cell phones?”

Cole: “I imagine if Dr. Martin Luther King was having an affair in 2014, as opposed to the 1960s, his cell phone, his smart phone, would have quite a bit of evidence that would lead the government to that affair. He’d have call logs; he might have texts; he might have e-mails – all of that would be on the phone.”

The discussion then moved onto the other panelists.

Afterwards, and writing on the Volokh Conspiracy blog, Professor Orin Kerr, who was one of the participants in the conference, summed up his views of the exchange this way:

“I score this Cole 1, Posner 0.”

The First Amendment — Enter Glenn Greenwald Read More

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Happy Bill of Rights Day!

I cannot consider the Bill of Rights to be an outworn 18th Century “strait jacket” . . . Its provisions may be thought outdated abstractions by some. And it is true that they were designed to meet ancient evils. But they are the same kind of human evils that have emerged from century to century wherever excessive power is sought by the few at the expense of the many. In my judgment the people of no nation can lose their liberty so long as a Bill of Rights like ours survives and its basic purposes are conscientiously interpreted, enforced and respected so as to afford continuous protection against old, as well as new, devices and practices which might thwart those purposes. I fear to see the consequences of the Court’s practice of substituting its own concepts of decency and fundamental justice for the language of the Bill of Rights as its point of departure in interpreting and enforcing that Bill of Rights     . . . . I would follow what I believe was the original purpose of the Fourteenth Amendment — to extend to all the people of the nation the complete protection of the Bill of Rights. To hold that this Court can determine what, if any, provisions of the Bill of Rights will be enforced, and if so to what degree, is to frustrate the great design of a written Constitution.

Justice Hugo Black

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On Free Expression & the First Amendment — More Questions for Judge Posner

 The American concept of freedom of speech poses a challenge to the pragmatist because, like ‘democracy,’ it is the repository of a great deal of unpragmatic rhetoric. It is at the heart of the American ‘civil religion,’ a term well chosen to convey the moralistic fervor in which free speech is celebrated. — Richard Posner (2003)

This is the sixth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, the fourth here, and the fifth one here.  

Here, as elsewhere, controversy is never far from the conceptual corner where Richard Posner lingers. Merely consider, for example, the following point he made in a 2001 article: “political free speech is not an unalloyed blessing.” Or consider his take on the most famous line from NYT v. Sullivan — he tags it (see below) “empty rhetoric.” Or think about his views on privacy and the First Amendment (see Glenn Greenwald’s criticisms below). Such comments are sure to raise skeptical eyebrows among the rah-rah First Amendment crowd.

Then again, that crowd happily hails the Judge for the robust defense of free speech he displayed in NAACP v. Button (1963), which he takes credit for authoring while he was a law clerk to Justice William Brennan. And then there are his opinions in cases such  American Amusement Machine Association v. Kendrick, the violent video game case. For staunch conservatives, such as Justice Clarence Thomas, protection of such expression “does not comport with the original public understanding of the First Amendment.” No matter, Posner paves his own path, sans any Hugo Black-like passion in defense of free speech or any Clarence Thomas-like zeal in defense of originalism.  

Of course, there is more to be said about Posner’s pragmatic approach to our free speech jurisprudence, and on that score some will approve and others not. In the tumble of it all, he remains a Maverick, which is how he likes it.  

Some of the Judge’s more notable writings on free expression can be found in the following works:

  1. Economic Analysis of Law (9th ed. 2014) (chapter 29)
  2. Not a Suicide Pact: The Constitution in a Time of a National Emergency (2009) (chapter 5)
  3. Law, Pragmatism and Democracy (2003) (chapter 10)
  4. Frontiers of Legal Theory (2001) (chapter 2)
  5. The Speech Market and the Legacy of Schenck,” in Lee Bollinger & Geoffrey Stone, eds., Eternally Vigilant: Free Speech in the Modern Era 121 (2002)
  6. Pragmatism versus Purposivism in First Amendment Analysis,” 54 Stanford Law Review 737 (2002)
  7. Free Speech in an Economic Perspective,” 20 Suffolk University Law Review 1 (1986)

For a sampling of his First Amendment opinions, go here and search “First Amendment.”

Below are some questions, on the topic of free expression and the First Amendment, that I posed to the Judge followed by his replies. (Note: Some links will only open in Firefox or Chrome.)

NB: A segment of this post, quoting a well-known journalist, has been temporarily omitted because of a strong objection. I will explain why in this Monday’s post.      

Question: Is speech overprotected by our courts and in our culture?

Posner: I think so. The most notorious example is expenditures on political advertising — Citizens United and its sequels.

Question: Though the Pentagon Papers Case (1971) is much celebrated in First Amendment circles, you seem to think that the Court might have gone too far. Two questions:

  1. What is your criticism of the case?
  2. Does over classification of national security information raise a a First Amendment issue?

Posner:

  1. I don’t think there is a right to read classified material. National security classification is one of many sensible exceptions to freedom of speech, along with threats, trade secrets, defamation, distribution of child pornography, lawful wiretapping and other lawful searches for communicative material, copyright infringement, and much else.
  2. It could, if there were no security justification.

Question: The so-called “war on terrorism” is unlike the Great Wars in that the enemy is ever changing and even hard to identify and the duration of the conflict is indeterminate. How does this affect the calculus of free speech “in wartime”?

Posner: I don’t see why the nature of the military conflict should make a difference.

Question: You have written that “some restrictions on speech actually promote speech.” That general idea seems to be getting some traction among egalitarian-minded liberal scholars dissatisfied with certain tenets of current free speech doctrine. Can you say more about your thinking here, especially as it might apply to the liberal defense of speech restrictions?

Posner: An obvious example is copyright protection, which restricts speech (the speech of copiers) but promotes speech overall by granting legal protection to original speech. Another obvious example is restricting the number of speakers in a political debate so that the debate won’t degenerate into an unintelligible babble of interruptions. Similarly one doesn’t want to allow the use of threats to silence people. A subtle example is the censorship of the Elizabethan theatre, which may well have promoted creativity by forcing playwrights like Shakespeare to situate contemporary problems in exotic times and places, in order to get by the censor.

Question: You pride yourself on being a “balancer,” as one who compares the social pluses and minuses of restrictions on free speech. Can you be an effective balancer absent a reliable record of the actual or even conjectural harms and benefits of speech? And what if the lawyers, as if often the case, tender no reliable empirical evidence one way or the other? Who wins, where is the conceptual default? Or must the reviewing court do its own research to resolve the question?

Posner: I don’t know how much empirical work has been done on the subject. In its absence, there is just guesswork, although the basic structure of American free speech law seems okay. Some of it strikes me as silly, notably granting rights of free speech to school kids.

[RKLC: 12-12-14: See William Baude’s commentary here.]

Question: Whatever its shortcomings, one of the benefits of a category-based approach to free speech (combined with certain tailoring tools, e.g., overbreath, etc.), is judicial efficiency. The rules are not unworkably open-ended and subjective, and are therefore relatively manageable for judges and lawyers alike.

  1. Mindful of that, how judicially efficient is your economic-based approach with its assorted variables? – e.g., taking into account and balancing the relevant benefits (B), harms (H), offensiveness (O), probability (P), the number of years between when speech occurs and when the harm is likely to materialize, and the administrative costs of a regulation (A).
  2. What about lawmakers, the focus of the First Amendment (Congress shall make no law . . . )? How likely are they to engage in such sophisticated cost-benefit analysis? Is your proposed approach a realistic test for them to employ in considering the constitutionality of proposed laws affecting speech?

Posner:

  1. One can hardly exclude offensiveness, other harms, probability of harm, remoteness of harm, etc. from consideration, any more than you can do that in an ordinary tort case.
  2. Do lawmakers ever do sophisticated cost-benefit analysis?

Question: In cases such as Holder v. Humanitarian Law Project (2010), is the purported harm so great as to preclude any meaningful balancing? It was precisely that concern that prompted Justice Stephen Breyer to complain in dissent: “I believe the Court has failed to examine the Government’s justifications with sufficient care. It has failed to insist upon specific evidence, rather than general assertion.”

How would you weigh in on this? By your standards, was Holder a case of failed balancing?

Judge Learned Hand

Judge Learned Hand

Posner: I haven’t read the case.

Question: You have expressed some conceptual approval of Judge Learned Hand’s opinion in United States v. Dennis (1950) in which he upheld the convictions of eleven Communist Party leaders for violating the Smith Act. Do you agree with the judgment in that case? Please say a few words about why you agree or disagree with the Dennis judgment.

Posner: Hand’s formula in Dennis is I think fine—it is a variant of the famous Hand negligence formula from his opinion in Carroll Towing. The Communist Party leaders were essentially agents of the Soviet Union, so I don’t see why their speech should be thought privileged by the First Amendment.

Question: Don’t phrases like “clear and present danger” (which, by the way, was used by the attorney Benjamin W. Shaw in 1918) invite, as Paul Freund suggested in 1949, a kind of mantra-like application devoid of the kind of realist and pragmatic balancing you endorse?

Posner:  It’s a dumb phrase. A murky remote danger could be very great.

Question: Based on what you know in light of the book you edited on Holmes, did he get the judgments right in Schenck, Frohwerk and Debs?

Posner: Probably not in Schenck or Debs; I don’t recall Frohwerk.

Question: “Thus we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open . . . .”

Do you consider those lines from New York Times Co. v. Sullivan (1964) to be “unpragmatic rhetoric”?

Posner: Empty rhetoric.

 Question: The Rehnquist and Roberts Courts have said relatively little about textualism when it comes to free speech and press issues. Why do you suppose that is?

Posner: There is no text. “Freedom of speech” is a heading, not a test.

Chief Justice John Roberts

Chief Justice John Roberts

Question: The Roberts Court has rendered 36 First Amendment free expression rulings. How would you characterize the First Amendment jurisprudence of the current Court?

Posner: Very nice for fat cats and enemies of abortion.

Question: You have long been on record as being a critic of the Court’s decision in Buckley v. Valeo (1976). You maintain that the “American system of campaign financing is extremely porous and is widely and probably correctly believed to constitute a thinly disguised system of quasi-bribes of elected officials; at the very least it tilts the playing field very steeply toward the wealthy and the well organized . . . .” Given that, how bad in your view have things become in light of rulings such as McCutcheon v. FEC (2014)?

Posner: Very bad.

Question: Do you favor some kind of constitutional amendment to remedy the problems you have identified

Posner: [The idea of a constitutional amendment is] a waste of time.

Posner on Roberts

Can so naive-seeming a conception of the political process reflect the actual beliefs of the intellectually sophisticated Chief Justice? Maybe so, but one is entitled to be skeptical. Obviously, wealthy businessmen and large corporations often make substantial political contributions in the hope (often fulfilled) that by doing so they will be buying the support of politicians for policies that yield financial benefits to the donors. [Source here]

Question: In his dissent in McCutcheon v. FEC (2014), Justice Breyer declared: “the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.” What is you view on this idea “collective speech” and the First Amendment?

Posner: A little high-falutin’ for my taste. I would just say that large corporations and wealthy people shouldn’t be allowed to buy elections.

Question: Despite your criticisms of Buckley and its progeny, you have also expressed serious doubts about campaign finance reform proposals. Please explain why you think such efforts are problematic.

Posner: Have I? I don’t recall

Question: In Frontiers of Legal Theory you wrote: “Individuals or groups that have more money than the average amount of money have always had more than the average ability to spend money on trying to influence public opinion. We do not consider such inequality a compelling reason for limiting free speech.” Do you still believe that?

Posner: The mere fact of inequality is not critical. And it would be very difficult for a new candidate to get launched without access to substantial donors. The problems are the concealment of the identity of big donors, the implicit quid pro quo (donor is buying influence, and donee who is not influenced is unlikely to obtain substantial future donations), and the failure to place some ceiling on the amount of donations that a particular individual should be free to make. And I doubt that companies as distinct from individuals should be permitted to make campaign contributions.

Question: As you know, the speech in question in Citizens United involved a political documentary titled Hillary: The Movie. A conservative non-profit group sought to air it within 30 days of the primary. During oral arguments in the case, the question was asked: “What if the particular movie involved here had not been distributed by Video on Demand? Suppose that people could view it for free on Netflix over the Internet? Suppose that free DVDs were passed out. Suppose people could attend the movie for free in a movie theater; suppose the exact text of this was distributed in a printed form.”

 How would you answer that question? Is it your position that showing that political documentary and/or publishing a book on it during an election is not protected speech under the First Amendment?

Posner: The question is the scope of protection. I don’t think the First Amendment should be interpreted to prevent government from limiting the amount of broadcasting (or equivalent, like movies) in the last few weeks before a national election.

Question: What is your view of the secondary effects doctrine as it has been applied by the Court and lower courts since its use in Renton v. Playtime Theatres, Inc. (1986) and then again in Barnes v. Glen Theatre (1991), which overruled an opinion that you authored. In 1988, your former boss, Justice William Brennan, warned that the doctrine “could set the court on a road that will lead to the evisceration of First Amendment freedoms.” Do you agree? Where do you stand on this matter?

Posner: I don’t think there’s anything wrong with it if it is supported by real evidence, though I think it was misapplied in the Barnes case because there wasn’t any evidence that nude dancing promotes crime to any significant extent.

The next installment, the seventh, in the Posner on Posner series was scheduled to be “On Judicial Reputation.” It will now be preceded by a special post on free speech and privacy.  

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The Spirit of the Constitution

Recently I’ve been asking myself this question:  What do people mean when they refer to “the spirit of the Constitution?”  It’s a phrase that was used by John Marshall in M’Culloch v. Maryland and which shows up in a lot of Supreme Court opinions.  Originally it was probably a play on Montesquieu’s Spirit of the Laws, which was influential in the eighteenth century.  But what does the phrase mean now?

My initial thought is that this is either purely rhetorical (“This violates the letter and the spirit of the Constitution”), a statement that something is unconstitutional even though there is no text or precedent that says so, or a statement that something is legal but should not be done.  Take President Obama’s Executive Order on immigration.  If I say that the order violates the spirit of the Constitution, am I saying that it is constitutional or is not?  I need to look more carefully at how this phrase is typically used to develop a solid answer.

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On legal education & legal scholarship — More questions for Judge Posner

We should not allow complacency about the American university system to blind us to the weaknesses in legal education.

I am not starry-eyed about the new interdisciplinary legal scholarship. [Even so,] where is it written that all legal scholarship shall be in the service of the legal profession? 

The decline in doctrinal scholarship is relative, not absolute, and perhaps not even relative; all that may be occurring is a shift in the production of doctrinal scholarship toward scholars at law schools of the second and third tier.

Richard Posner (1995)

This is the fifth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, and the fourth one here.  

Richard Posner’s scholarly career in law may have started in 1961-62 when he served on the Harvard Law Review, first as a staff member and then as the President. During that period he published on topics as diverse as a note on the application of international law to outer space (74 HLR 1154), a comment on federal review of state law rulings (74 HLR 1375), a comment patent and antitrust law (75 HLR 602), and a comment on the application of law to religiously owned property (75 HLR). After his clerkship with Justice William Brennan (1962-63 Term) and several jobs with the federal government, he began his professorial career at Stanford Law School in 1969 and thereafter ventured off to the University of Chicago Law School where he is currently a senior lecturer in law. Over the years he has taught antitrust, economic analysis of law, civil procedure, conflict of laws, law and science, evidence, and law and literature.

Screen Shot 2014-12-02 at 2.03.58 PMOne of his articles ranked 64th in the list of the most-cited law review articles of all time. In the field of antitrust law, one his articles (co-authored with William Landes) ranked second in the listings of the most-cited law review articles. (Posner had his own system of rankings.  See here) Even more impressive, as reported by Fred R. Shapiro and Michelle Pears, “[a]s of 2000, Judge Posner was the most often-cited legal scholar of all time with 7,981 citations, nearly 50 percent more than anyone else.”

In the last half-century or so, Posner has published a wide variety of scholarly works in the form of books (40-plus) and articles (300-plus) – perhaps more than any academic writing in the field of American law. In that array of legal literature he has written much on the topic of legal education and legal scholarship. See, for example, the following nine articles by him:

  1. The Present Situation in Legal Scholarship,” 90 Yale Law Journal 1113 (1981)
  2. The Decline of Law as an Autonomous Discipline,” 100 Harvard Law Review 761 (1987)
  3. The Deprofessionalization of Legal Teaching and Scholarship,” 91 Michigan Law Review 1921 (1993)
  4. The Future of the Student-Edited Law Review,” 47 Stanford Law Review 1131 (1994)
  5. William M. Landes & Richard A. Posner, “Heavily Cited Articles in Law,” 71 Chi.-Kent L. Rev. 825 (1996)
  6. Past-Dependency, Pragmatism, and Critique of History in Adjudication and Legal Scholarship,” 67 University of Chicago Law Review 573 (2000)
  7. Legal Scholarship Today,” 115 Harvard Law Review 1314 (2002)
  8. Against Law Reviews,” Legal Affairs, Nov-Dec. 2004
  9. The State of Legal Scholarship Today: A Comment on Schlag,” 97 Georgetown Law Journal 845 (2009)

Below are some questions on the topics of legal education and legal scholarship I posed to the Judge followed by his replies. (Note: Some links will open in Firefox or Chrome but not in Safari.)

 __________________________

Question: What do you think is the single greatest shortcoming of legal education in America today?

Posner: There are several shortcomings; I don’t know how to rank them.

  1. Legal education is too expensive, in part because law school faculties are too large.
  2. Not enough law professors, especially at the elite law schools, have substantial practical experience as lawyers, and
  3. Law school teaching focuses excessively on legal doctrine, to the exclusion of adequate attention to facts, business practices, science and technology, psychology, judicial mentality and behavior, legal practice, and application of legal principles.

Question: Insofar as the teaching of legal ethics is concerned, is teaching the rules of professional responsibility and the cases interpreting them enough in your opinion? Or should some significant attention be devoted to familiarizing law students with some of the great works of the Western Philosophical tradition? – say, to Plato’s Gorgias or Aristotle’s Rhetoric (see here at p. 1924)

Posner:  I don’t consider instruction in legal ethics an important part of legal education. Aristotle’s Rhetoric is pertinent to the rhetorical dimension of legal practice, rather than to legal ethics. Gorgias can be read as critical of lawyers’ tricks, though there were no lawyers as such in fourth century b.c. Athens.

Question:  It has been argued that legal education is akin to learning a form of science. In what ways, if any, does it make sense to speak of the study of law as the study of legal science?

Posner: Law has nothing to do with science. It involves making and applying rules of conduct; the rules are based on legislative and other political decisions, common sense, societal values, judges’ personal preferences, intuition, rhetoric—not logical or scientific rigor.

Question: All things considered, what do you think of calls for reducing law school education to two years?

Posner:  I think that would be fine. A third year might be offered, but as something to be taken after the two-year graduate has spent some time in practice and wants some specialized further training.

Question: In your opinion, how, if at all, has the role of the law school dean changed in the past half-century? And if it has changed, what do you make of it?

Posner: Much more emphasis on fund raising.

Question: In Tagatz v. Marquette University (1988) you noted that tenure “tends to take some of the edge off academic ambition.” What are your views on the current tenure system as it operates in law schools and how, if at all, might you change it?

Posner: Tenure is a form of nonmonetary compensation, hence attractive to universities. The downside is it undermines the work ethic. I don’t know whether the benefits exceed the costs.

Question: (1) What are your views concerning affirmative action and tenure standards when it comes to promoting racial minorities? And do democratic principles justify bending evaluative standards?

(2) Is the problem of race the problem of the evaluative standards that law schools employ? If so, what is the alternative?

Screen Shot 2014-12-07 at 11.45.07 PMPosner:  (1) The only racial minority in the United States that needs affirmative action is the African-American minority. I doubt, though, that African-Americans who have the competence to be considered as law professors need a boost.

(2) I think law schools should give more weight to practical experience in hiring law professors, but I don’t think this relates particularly to African-Americans.

Question: Many years ago you wrote: “not all blacks are culturally black.” Would you a say a bit more about what you meant by that and do you still hold to that view? In answering that question, do you think that one can ever fully escape the consequences of his or her color even if one is, as you put it, an “assimilated black”?

Posner: I’m sure that almost all African-Americans are conscious of and think occasionally about being black—that’s inevitable given history, and it’s the same reason that secular Jews, who may have zero interest in Judaism or Jewish culture, remain conscious of being Jewish. But successful upper-middle-class African-Americans are so much like their white counterparts as not to be preoccupied with the racial difference.

Question: Is Socratic “cold call” method dying in law schools? Or is it already largely dead? If so, is this a good thing? Your views? Read More

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The Judge & Company – Questions for Judge Posner from Judges, Law Professors & a Journalist

That’s a sensitive question to put to a judge.

                      – Richard Posner (see below)

This is the fourth in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second one here, and the third one here.

Has any sitting appellate jurist ever entertained a wide swath of questions from a journalist, fellow judges, and law professors? The answer: Never, to the best of my knowledge. But if one had to pick such a jurist, Richard Posner would surely be (and is) that person. True to his realist image, he answered all of the questions posed to him and did so promptly and, for the most part, without reservation. 

In order to get a range of views from different perspectives, I invited a number of noted legal figures to pose questions to Judge Richard Posner. Twenty-four responded; they are:

  • Thomas Ambro
  • William Baude
  • Ryan Calo
  • Erwin Chemerinsky
  • Lawrence Cunningham
  • Michael Dorf
  • Barry Friedman
  • David Hoffman
  • Yale Kamisar
  • Judith Kaye
  • Hans Linde
  • Adam Liptak
  • Andrea Mays
  • Linda Mullenix
  • Robert O’Neil
  • Frederick Schauer
  • David Skover
  • Daniel Solove
  • Geoffrey Stone
  • Kellye Testy
  • David Vladeck
  • Eugene Volokh
  • Kathryn Watts
  • Adam Winkler

Their questions, organized into 26 topics, are set out below followed by Judge Posner’s replies. Hyperlinks have been added where useful. Note: Some links will open in Firefox or Chrome but not in Safari. –RKLC

_____________________________

I.     Clerking for Justice Brennan

Professor Robert M. O’Neil: Perhaps your most remarkable contribution as a Supreme Court clerk for Justice William Brennan was the total change in the status of Gray v. Sanders (1963).  You initially drafted an opinion for the Justice that would have resulted in a decisive reversal of the Ninth Circuit ruling. But you quickly learned that the Court had preliminarily voted 7-2 to affirm. On the basis of your persuasive draft opinion, however, Justice Brennan promptly asked the Chief Justice to reassign the case. That soon resulted in a 7-2 reversal with only Justices Clark and Harlan dissenting.  Two intriguing questions arise:

  1. Given the oral argument and the statutory context, why were you so sanguine about the prospects for reversal?
  2. And how did you eventually persuade Justice Brennan and four of his colleagues to reach a wholly different result?

[RC: Professor O’Neil clerked with Justice Brennan when Posner did.]

Judge Posner:

  1. I wasn’t. I was under the mistaken impression that the Court had voted to reverse.
  2. I didn’t use any persuasion. When Justice Brennan read my opinion, he said it was persuasive and he’d tried to persuade the Court to change its vote from affirm to reverse. His persuasive efforts must have been effective, though I don’t recall his having said anything to me about them.

Professor Robert M. O’Neil:

  1. Among the Supreme Court opinions to which you made substantial and invaluable contributions, how would you appraise the Philadelphia National Bank (1963) case?
  2. To what extent did Justice Brennan or other members of the Court (or fellow clerks, or for that matter teachers like Harvard Professor Donald Turner) shape your views on those issues?

Judge Posner:

  1. Of the opinions I worked on, that was my favorite. I think it was influential on antitrust law and also convinced me to specialize in antitrust, which I did for the early part of my career, following the clerkship.
  2. The principal influence was Derek Bok, then a professor at Harvard Law School and later, of course, dean of the law school and later still president of Harvard University. He had written an important article on merger antitrust law, part of which I had cite-checked when I was on the Harvard Law Review. The article stuck in my mind and played a crucial role in my thinking about the Philadelphia Bank 
Justice William Brennan

Justice William Brennan

II.     Judging Justice Brennan

Professor Geoffrey Stone: You served as a law clerk to Justice William J. Brennan, Jr., a half-a-century ago. With the benefit of hindsight, how would you assess his contributions as a Justice?

Judge Posner: Obviously, he was very influential, in part because of his warm personality and willingness to compromise. I think Warren relied heavily on him. A number of the Warren Court’s most important decisions were his.

III.     Jurisprudence

Professor Frederick Schauer: When you were a law student, Lon Fuller was a major figure at the Harvard Law School, and only a few years earlier his published debate with H.L.A. Hart was a major event at the school and in legal scholarship generally.

Could you comment on your views about the contemporary state of Anglo-American jurisprudence, whether that state is different from what it was fifty years ago, and, if different, what might account for the change?

Judge Posner: I never met or had a class from Fuller, and never cottoned to his views, and I don’t remember whether I ever read that debate. I never took a course on jurisprudence and I don’t think I had any interest in it. As an academic I became interested in it and wrote about it.

I like your work in jurisprudence, and that of Neil Duxbury and a few others, but much of the jurisprudence literature I find rather sterile. I found Ronald Dworkin’s approach unconvincing; likewise with H.L.A. Hart’s. I love the legal realists, above all Holmes, but also John Dewey, Jeremy Bentham, of course, Hans Kelsen, and Richard Rorty (not an exhaustive list), though law was far from a major interest of Dewey and Rorty.

 IV.     Law in a Globalized World

Judge Judith Kaye (ret):

  1. What is the impact of our radically globalized world on the business of the U.S. courts? How is our jurisprudence, our decision-making process, in any way influenced by the cultural diversity of the international issues we increasingly face?
  2. In that connection, what is the impact of the increased use of alternative dispute resolution mechanisms in international matters, inevitably still requiring resort to our courts?

Judge Posner:

  1. We get more cases involving foreign and international law, but I think the influence of foreign legal practices on our jurisprudence and decision-making processes is slight. We continue to resist inroads into the adversary system. I think that resistance is a big mistake, but I also think it’s a mistake to look to foreign judicial decisions for guidance to how we should deal with issues such as capital punishment, abortion, and international human rights. I think one has to have a deep understanding of a foreign culture in order to be comfortable with borrowing a foreign country’s law.
  2. I don’t know; I haven’t studied the issue, and have only a few cases.

V.     Law & Economics

Professor Michael Dorf: I detect in your academic work (and to a lesser extent your work as a judge) a gradual drift from an economic analysis of law to pragmatism more broadly. Do you agree with that assessment, and if so, what do you think accounts for it?

[RC: Professor Dorf wrote the biographical entry on Judge Posner for the Yale Biographical Dictionary of American Law (2009).]

Judge Posner: You’re correct. It is partly a result of the inroads that psychology has made on economic analysis, partly a result of the economic profession’s failure to understand finance and monetary policy in the period leading up to the crash of 2008, and (relatedly) the revelations of unexpected extensive greed and corruption in American business, not limited to the financial industry.

Professor Ryan Calo: You are famously skeptical of the idea that the law should protect the efforts of market participants to conceal information about themselves. But the beauty of markets lies precisely in their ability to facilitate transactions between parties with wildly disparate backgrounds, tastes, and views — people who otherwise would avoid one another, but come together on the basis of a willingness to pay or receive a particular price.

How do you respond to the contention that a world without a meaningful degree of privacy in such situations would be a world full of balkanized, and hence deeply inefficient, markets?

Posner on Privacy

Judge Posner: I’m not opposed to legal protection of privacy. But I do regard privacy as a common means by which people present a misleading impression of themselves, often deceiving the people with whom they deal, either personally or in transacting. So I think we must be careful not to overprotect privacy.

Justice Hans A. Linde (ret.): You are widely known for linking law and economics and for advocating a pragmatic jurisprudence. These seem to pose two problems for a federal judge:

  1. Federal cases often arise from acts of Congress, not judge-made common law. What should a judge do when an enactment plainly places some people’s non-economic demands over the economic interests of the majority?
  2. Other disputes are between citizens of different states (or nations) that may have different legal answers to the disputed issue. How should a federal judge choose which state’s law applies to the case? That is, should a judge choose the laws of the state that is economically preferable, or is the choice prescribed by law?

MET-AJ-POSNER-0919Judge Posner:

  1. If a statute is clear, and constitutional, then I am bound. But the statutory provisions that get involved in appellate litigation very often are unclear, and then the judge has considerable freedom to select the interpretation that makes the most sense, though it won’t always be an economic sense.
  2. Conflict of law rules seem to me readily understandable in economic terms. If one thinks of the reasons for applying one state’s law rather than another’s, they generally have to do with which state has the greater interest in regulating the activity that gave rise to the suit. That’s the basis of lex loci delicti, which continues to be a sound doctrine that has largely survived modern loosey-goosey conflicts doctrine.

VI.     The Record of a Case

Professor Frederick Schauer: You tend to go beyond the record, the briefs, and oral argument more often than most appellate judges, and you have noted that you have been criticized for it. Could you explain your practice, explain the criticism, and explain why you think the criticism misses the mark?

Judge Posner: I find that the briefs and arguments, and lower-court opinions, very often do not answer the questions that I think are important to a sound understanding of the case. So, I look for the answers, often by an Internet search. I tell lawyers if you don’t like me doing that, do it yourselves. I do try to be sensitive to risk of error in judicial fact research. I understand the criticism, because the lawyers want to control the case. They invoke the glories of the adversary system. I think the adversary system is overrated. Not that I want to convert to the inquisitorial system that prevails in Europe (except the U.K.) and most of the rest of the world, but I want to see the adversary system taken down a peg. I am a big fan of Fed. R. Evid. §706, which allows a judge to appoint his own expert witness, as opposed to having to depend entirely on party experts.

VII.     Experiential Knowledge Read More

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The Man Behind the Robes — A Q&A with Richard Posner

I myself am a counterrevolutionary. I am not eager to be sent to the countryside to do farm work while wearing a dunce cap. (2009)

I’m much less reactionary than I used to be. (2014)   – Richard Posner

This is the third in a series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, and the second one here. (My interest in Judge Posner goes back almost a quarter century. See Ronald Collins & David O’Brien, “Gauging Reputations, National Law Journal, pp. 13-14, April 1, 1991 (commenting on Posner’s Cardozo book).)  

The measure of a man is gauged in different ways. For some, it moves along a spectrum of social approval. For others, it is personal perfection. For a few, it is mastery — that ability to excel in one’s life calling. And then there are those who take public service seriously. For yet others, it is legacy – that long story after the life story. In that journey, whatever one’s direction and destination, a few are bold into the fray, others calculating into the conflict, and still others are quiet into the clash. How we measure them depends on where we stand, how we judge the end game, and just how impartial we are. Then again, how we judge someone may reveal more about us than the person being judged. Bear all that in mind as you read the words of the man — an atypical  man — who is the focus of this and the other interviews.  

Richard Posner

Allen Richard Posner (see below)

How, then, to measure Richard Posner? It is not an easy task; he is complex. Because of that it is easy to misjudge him. Up close, Posner is unusual. For one thing, his candor can be unnerving. Thus, his personality in one-on-one situations can be odd, unless one is attuned to him, which requires being on his psychological wavelength. For another thing, he is somewhat unconstrained by many social mores. He is, for better or worse, a take-me-as-I-am sort of individual. But give him distance from the province of personality (conventionally defined), and he works well in the world of rules and reasons. That is his domain. In that realm, he appreciates informed judgment and delights in being daring. True to his cerebral bent, he loves to be rational (tag it Aristotelian eros), even if it leaves him the odd man out. In that sense, there is something peculiarly fascinating about him – that rara avis who seizes our attention even when we tend to turn away.    

What follows are the first in a series of questions I posed to the Judge about his life and life views. (Note: Some links will open in Firefox or Chrome but not in Safari.)

 ____________________________

Question:    Were you born Richard Allen Posner, or was Allen your first name? [Hat tip to Professor Peter Irons.]

Posner:       That’s true [about being named Allen]. But my parents always called me ‘Dick.'” [RC: The Judge has his law clerks address him as his parents did.]

Question:   You were exceptionally revealing in the New Yorker profile that Larissa MacFarquhar did back in 2001 – the story in which, among other things, you described yourself as “an imperfectly house-broken pet.” You also compared yourself to your late Dinah, “playfulbut with a streak of cruelty.” (Dinah has since died.) Two questions:

  1. Why? What prompted such unconventional candor?
  2. Do you have any regrets?

Posner:

  1. Larissa was very skillful at extracting unguarded comments from me. She is an excellent reporter. [RC: In a 2003 interview with Howard Bashman, Judge Posner said: “MacFarquhar. . . exaggerated my role in the law and economics movement, but that’s fine!”]
  2. No.

Question:      In what respects are you most like and unlike your parents?

Posner:         I share my mother’s love of literature, and my parents’ lack of religiosity (I believe the word “God” was never mentioned in our home). My father [Max] was introverted, like me. I didn’t share my parents’ politics, which were extremely left-wing. It’s unrealistic to think me much like my parents, as they were born in 1900 and 1901 respectively, into central European families with no money who immigrated shortly afterward to the United States. There is no comparison to my situation at and after birth, by which time (1939) my parents were prosperous, educated, and completely assimilated Americans.

Cleanth Brooks

Cleanth Brooks

Question:    You were an English major at Yale College and did your senior thesis under Cleanth Brooks (the famed figure of literary criticism). Your thesis was on William Butler Yeats’s late poetry. Why English, why Yeats? And tell us a little bit more about you senior thesis – its title and scope.

Posner:   My mother [Blanche] was a high school English teacher and started me off on literature when I was an infant — she read Homer and Shakespeare to me from a very early age. I majored in English at Yale because I was already steeped in literature and Yale had the best English department in the country. I discovered Yeats’ poetry and loved it and still do. I don’t recall the title of my senior thesis. I do recall the principal theme, which was that his poetry was “reflexive,” in the sense that much of it, I thought, despite its ostensible subject matter, was about poetry itself, which after all he new best.

Question:   What was your draft status? How did you navigate the whole military service matter?

Posner:    Deferment was automatic in my day (before the Vietnam War heated up) while one was a student. My first job after graduating from law school was as a law clerk at the Supreme Court. Justice Brennan, my boss, wrote a letter to my draft board before I started the clerkship asking it to defer me for the clerkship, which it did (it didn’t have to). During my clerkship year my wife had our first baby, and at the time (1963) that was an automatic deferment. I never heard further from anyone about the draft.

Alex Bickel

Alex Bickel

Question:    When you were the president of the Harvard Law Review (vol. 75, 1961-62), several prominent persons (e.g., Alexander Bickel, Felix Frankfurter, and Henry Friendly) published on your watch. Do you have any memorable stories you might share with us?

Posner:      Bickel was not a Harvard Law School professor (Yale instead), and I broke with tradition in asking him to write the Foreword to the Supreme Court section in the first issue.

I also got into some trouble with the faculty over publishing a very critical review by Frederick Bernays Wiener of an excellent revision [of Wigmore’s evidence treatise] by John T. McNaughton, one of the law school’s professors (later a key aide to Robert McNamara in the Vietnam War).

Question:       Were there any professors you had at Harvard who stood out in your mind? If so, who were they and why do you remember them?

Posner:         There were a number of excellent professors: in no particular order they were Paul Bator, John Mansfield, Abraham Kaplan, Derek Bok, Donald Turner, Walter Bart Leach, and (probably the best) John Dawson. I may have forgotten some others who were good. Turner’s field was antitrust, and he had a Ph.D. in economics from Harvard. We were friendly. To some extent, he sparked my interest in economic analysis of law.

Question:       How did Paul Freund come to select you for a clerkship with Brennan?

Posner:        He was an informal adviser to the law review so I got to know him pretty well, though I never had him in class. I was the president of the law review and the highest-ranking student by grades, so I was a natural pick for a Supreme Court clerkship. I didn’t apply—he just picked me. I actually wasn’t particularly interested in clerking.

Question:       You worked with Thurgood Marshall while he was Solicitor General. What was your opinion of Mr. Marshall back then?

Posner on Thurgood Marshall

He was a good boss in the sense that he backed the staff, which of course was all I cared about, but had rather little interest in the job. It was just a stepping-stone job. He had been a great trial lawyer, and I don’t think appellate law interested him particularly. Before becoming SG he was on the Second Circuit briefly, and after he was S.G. he, of course, was on the Supreme Court. I don’t think any of those jobs drew on his strengths, which as I say was as a trial lawyer.

 Question:      While in the S.G.’s Office you argued nine cases before the Supreme Court. Do any of those case stand out in your mind? Are you especially proud of your performance in any of them?

Posner:          I remember the antitrust cases, like Von’s and Schwinn, but I don’t really remember my briefs or oral arguments in them.

Question:     You were general counsel on President Johnson’s Task Force on Communications Policy. How did that come about and what sort of things did you do in that capacity?

Posner:       I probably was asked by the staff director, Alan Novak, but I don’t actually remember. My title of “general counsel” had no meaning. The task force had a small staff. I learned a lot of economics from our economist staff member, Leland Johnson, a very smart economist from RAND. I did most of the writing for the report. The report was influential in the deregulation movement, and also led to my being asked to do a good deal of consulting in telecommunication policy during my time as an academic.

Question:     What is your sense of the 60s counter-culture? Read More

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The Bill of Rights and the Ninth Amendment

One of the issues that I’m going to explore in my next book (an announcement about that should be coming soon) is the debate between those who think that the Bill of Rights consists of the first ten amendments and those who think that text includes only the first eight amendments.  People rarely explain why they give the definition that they do, so we need to fill in that gap with some speculation.  Part of the answer for the “eight amendments” crowd must be that they did not care for states’-rights or thought that that the Bill of Rights addressed only individual rights.  (Adios, Tenth Amendment.)   Since the first references to the Bill of Rights as “just eight amendments” came during Reconstruction, any antipathy towards the Tenth Amendment is understandable.

A more interesting question is what the “eight amendments” interpretation of the Bill of Rights says about the Ninth Amendment.  If you think that the Ninth Amendment protects unenumerated individual rights (or at least says that they are not precluded) then there is every reason to include that as part of the Bill of Rights.  Nevertheless, I can find only one case that defines the first NINE amendments as the Bill of Rights, even though that reading makes sense.  Those who excluded the Ninth must have either thought that this provision did nothing important or did not protect individual rights.  How common was this view?  Not uncommon, though I’ll note that John Bingham was in the “first ten amendments” camp.  Since the 1970s, though, the “first eight amendments” view had faded away.  Could this be because unwritten rights and states-rights have gained traction since then?

4

Presidential Censure

In the wake of the President’s executive order on immigration, at least one Republican member of Congress has called for a Censure Resolution declaring the President’s conduct either unlawful or wrong.  (I’m not sure which.)  The precedent for this during Andrew Jackson’s presidency, which I talked about in my first book, is very problematic given that only the Senate censured the President, Jackson protested that the resolution was unconstitutional, and the resolution was later repealed by the Senate.

Here’s a broader question.  Is there any limit on Congress’s power to pass a joint resolution that does not create binding law?  In other words, can Congress pass any resolution that just gives its opinion?  Suppose they want to say that the police officer in Ferguson should have been indicted?  Or that Bill Cosby is a rapist?  Or that Putin is not the legitimate president of Russia?  One thought is that resolutions like these are purely symbolic, and so there are no constitutional limits.  But you could say that these statements might matter (for instance, in a civil suit brought against a named person, or in some diplomatic negotiation).  If that is true, though, how does one articulate the limits on Congress’s expressive rights?  Does the President need to denounce one that goes too far?  Should courts not allow such statements to go before a jury?