Category: General Law

5

The Garner Case

I’m not a criminal law expert, of course, but I thought I would start what amounts to an open thread on the Garner case.  Here is my question:  Can the decision by the grand jury not to indict be defended?  If so, how?

I’ll add one qualification.  A perfectly fine answer to my question is that the grand jury had before it exculpatory evidence that we don’t know anything about.  Since there is no way to disprove that assertion (given that these grand jury proceedings are still secret), let’s assume for the sake of argument that what is in the public record is all of the relevant evidence.  Discuss.

3

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.

0

Two Cheers for the Senate

It is easy to take shots at the Senate.  It violates the one-person, one-vote standard as between the populations of the states.  You often need sixty votes to get anything done.  The rules are arcane.  And so on.  But I want to put in a good word for the Senate.

The principal advantage of the Senate is that the two parties are on a much more equal footing there than they are in the House of Representatives.  Consider that from 1954 to 1994 Democrats controlled the House.  Since 1994, the Republicans have controlled the House for all but four years.  Before 1954, Democrats controlled the House for all but four years from 1932 to 1954.  In other words, the House of Representatives rarely changes hands.  Why is that?  One explanation is that incumbency matters more in low-profile House races.  Another explanation is gerrymandering.

By contrast, the Senate changes hands more frequently (at least since 1980).  The GOP held it from 1980-1986.  Then the Democrats held it from 1986-1994.  Then the the GOP was back from 1994-2001, then Democrats held control in 2001-2002, then the GOP from 2002-2006, then the Dems from 2006-2014, and now the GOP again.  Why is that?  You cannot gerrymander Senate races, for one thing.  Secondly, the states up for reelection in any given year usually favor one party over the other, but rarely the same party.  And third, incumbency probably matters less for Senators.  (Ask Mary Landrieu if her three terms of bringing home the pork helped when her party’s President is unpopular in her state.).  The Senate was obviously not designed to make party competition more lively, but that is the result.  And I submit that this is a healthy thing.

Posner
0

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

Posner
7

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

5

Sex (and Money) in the City

Thanks to Solangel, Dan, and the rest of the folks at Concurring Opinions for inviting me to be a guest blogger this month!

A few weeks ago, an Oklahoma judge was tasked with dividing Harold and Sue Ann Hamm’s $2Billion marital estate. And the judge’s only guidance was to divide it in any way that was, in his mind, “fair,” “just,” and “reasonable.”  Billion dollar divorces like this one highlight long-known problems with divorce law. Namely, that courts have wide and almost unreviewable discretion over many aspects of a divorcing couples’ lives.  When I ask students in my family law class how they would divide a particular marital estate, I generally get a lot of variation.  Many people choose 50%-50%, a substantial number choose 66%-34% or 75%-25%, but there are always a lot of students who choose more extreme divisions, like 90%-10%.  This highlights the lottery-like aspect of many family law issues.

But what can be done? I want to float a controversial idea, and then very briefly explain why it deserves serious attention.

Here’s the idea: Let local governments (like city councils) weigh in on how local judges should exercise their discretion.

The rest is below the fold…

Read More

Posner
0

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

1

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?

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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?