SEX, Economics & OTHER Legal Matters

By Kurtz, Steve | Reason, April 2001 | Go to article overview

SEX, Economics & OTHER Legal Matters


Kurtz, Steve, Reason


Judge and scholar Richard A. Posner speaks out on the Clinton impeachment, the Microsoft case, and nude dancing.

Richard A. Posner might be the most important and influential legal thinker alive. A professor at the University of Chicago Law School since 1969 and a judge on the U.S. Court of Appeals for the 7th Circuit since 1981, he is the author or co-author of more than two dozen books, including Economic Analysis of Law (1973), which helped pioneer the thriving field of law and economics. He has also written hundreds of articles and book reviews, as well as some 1,800 judicial opinions. While economics informs his thinking, Posner is hardly a one-trick pony: He has addressed topics as diverse as cloning, rhetoric, Kafka, citation style, AIDS, euthanasia, literary theory, advertising, and ancient Greece; it's almost easier to list subjects he hasn't discussed.

As widely esteemed as Posner is, he has also been widely attacked. Conservatives have questioned what they see as his moral relativism, as well as his skepticism that simple deductive legal analysis can lead to the "right" judicial ruling. The left objects to his attack on moral philosophy and his claim that there has been too much emphasis in the law on free-floating standards such as "fairness" and "social justice." And many on all sides have been troubled by his seemingly cold-blooded economic approach to human interaction, including examinations of rape, abortion, and the selling of babies.

While Posner had been a well-known and controversial figure in legal circles for three decades, in 1999 his notoriety spread further: He published a book about the Clinton impeachment, An Affair of State, that caused a stir, and he was named mediator in the Microsoft antitrust case (although the negotiations ultimately fell apart). Suddenly he was an A-list legal celebrity, profiled in newspapers and magazines across the nation.

I got to know Posner while attending the University of Chicago Law School, where I took his classes on the legislative process and law and literature. Whenever I'm passing through town, we meet for lunch. Considering how strongly worded his opinions can be, in person he is surprisingly softspoken, with a gentle good humor. His conversation, as might be expected, is wideranging: He may talk about the limits of federal jurisdiction at one moment and his love of the little-seen comedy 8 Heads in a Duffel Bag the next. And as busy as he must be, he is a host who never gives you the feeling that he's in a rush.

Oscar Wilde once said of George Bernard Shaw that "he hasn't an enemy in the world, and none of his friends like him." Posner is the opposite: Plenty of people strongly disagree with his writings, but he's such a genial, hardworking person that even his enemies can't help but admire him.

Reason: You came to the University of Chicago in the late 1960s. What were the turning points, occurring around that time, that shaped the emerging field of law and economics?

Richard A. Posner: I think the basic developments were earlier. They really go back to the '50s. As sophisticated economics became trained on antitrust issues, and as antitrust became an important field of law, lawyers began to notice that there was a body of economic work that had a lot to do with law. But the impact was mainly in the antitrust field and closely related fields like public utility and common-carrier regulation. Then Ronald Coase published his article on social cost in 1960, and about the same time Guido Calabresi published his first article on tort law. These were two articles applying economics to the common law as far as it had been to the antitrust domain. Now people began to realize that economics might have a broader scope. When I started teaching in 1968, I had actually been working on antitrust cases; I was an economics fan. I discovered there was this economics of tort law as well, and it began to seem that economics had a broad applicability to law. …

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