Frontiers of Legal Theory
Boudreaux, Donald J., Ideas on Liberty
Frontiers of Legal Theory by Richard A. Posner Harvard University Press * 2001 * 453 pages * $35.00
I am one of Judge Richard Posner's most sincere and enthusiastic admirers. Not only am I, like everyone who knows of him, in awe of his remarkable rate of scholarly output, I also deeply admire the content of his scholarship. He is one of the most creative and engaging scholars of the past century.
Frontiers of Legal Theory is a collection of 14 of Posner's articles and talks, all of which are published separately elsewhere. As a result, only two general threads connect the essays into a single book. One is described by the book's title-but then, nearly everything that Posner writes is on the frontiers of legal theory. For more than 30 years he has been the most intrepid and creative advocate of examining, and molding, law with Chicago-style economics. From antitrust and utility regulation to literature to the history of ideas to the economics of allowing birth mothers to sell their parental rights in their infant children to the Clinton sex scandal, Posner's fascinating mind has touched almost every conceivable issue in the social sciences and shown how economics can illuminate them.
The second thread is Posner's long-time insistence that law be understood and crafted pragmatically. He sensibly rejects the idea that law does or should reflect a morality that transcends human reality, as well as the opposite idea that law is nothing more than the imposition by the powerful of their greedy will on the weak. Whether his pragmatic, economics-based understanding of law is the best alternative to these (and other) notions of law is a question that no review of this size can hope to answer.
Having read nearly all of Posner's books, I must report a regular occurrence. When reading him, I often think to myself, "What?! That can't be right." But invariably, as I read on, I discover that his arguments almost always convince me. And even when I remain unconvinced, I find that I've learned a surprising amount by taking him seriously.
What do I find in the book reviewed here? Too many interesting things to evaluate in a short space. Posner here speculates about the influence of Jeremy Bentham on the lawand-economics movement. He explores the markets for speech, for history, for social norms, and for scholarly output. He illuminates the law and economics of possession, of testimony, of emotions, of forensic evidence, and of judicial performance. This range is indeed wide.
To get a sense of Posner's thinking, consider this sample of points made in this book: It makes good economic sense to protect flag burning under the First Amendment because "The force of the gesture is greatly weakened if . …