Richard Allen Posner (; born January 11, 1939) is an American legal scholar and retired
United States circuit judge who served on the
U.S. Court of Appeals for the Seventh Circuit from 1981 to 2017. A senior lecturer at the
University of Chicago Law School
The University of Chicago Law School is the Law school in the United States, law school of the University of Chicago, a Private university, private research university in Chicago, Illinois. It employs more than 180 full-time and part-time facul ...
, Posner was identified in ''
The Journal of Legal Studies
''The Journal of Legal Studies'' is a law journal published by the University of Chicago Press focusing on interdisciplinary academic research in law and legal institutions.
It emphasizes social science approaches, especially those of economics, ...
'' as the
most-cited legal scholar of the 20th century.
As of 2021, he is also the most-cited United States legal scholar of all time.
He is widely considered to be one of the most influential legal scholars in the United States.
Posner is known for his scholarly range and for writing on topics outside of law. In his various writings and books, he has addressed
animal rights
Animal rights is the philosophy according to which many or all Animal consciousness, sentient animals have Moral patienthood, moral worth independent of their Utilitarianism, utility to humans, and that their most basic interests—such as ...
,
feminism
Feminism is a range of socio-political movements and ideology, ideologies that aim to define and establish the political, economic, personal, and social gender equality, equality of the sexes. Feminism holds the position that modern soci ...
,
drug prohibition,
same-sex marriage
Same-sex marriage, also known as gay marriage, is the marriage of two people of the same legal Legal sex and gender, sex. marriage between same-sex couples is legally performed and recognized in 38 countries, with a total population of 1.5 ...
,
Keynesian economics
Keynesian economics ( ; sometimes Keynesianism, named after British economist John Maynard Keynes) are the various macroeconomics, macroeconomic theories and Economic model, models of how aggregate demand (total spending in the economy) strongl ...
,
law and literature
The law and literature movement focuses on connections between law and literature. This field has roots in two developments in the intellectual history of law—first, the growing doubt about whether law in isolation is a source of value and mean ...
, and academic
moral philosophy
Ethics is the philosophical study of moral phenomena. Also called moral philosophy, it investigates normative questions about what people ought to do or which behavior is morally right. Its main branches include normative ethics, applied et ...
, among other subjects.
Posner is the author of nearly 40 books on
jurisprudence
Jurisprudence, also known as theory of law or philosophy of law, is the examination in a general perspective of what law is and what it ought to be. It investigates issues such as the definition of law; legal validity; legal norms and values ...
, economics, and several other topics, including ''Economic Analysis of Law'', ''The Economics of Justice'', ''The Problems of Jurisprudence'', ''
Sex and Reason'', ''Law, Pragmatism and Democracy'', and ''The Crisis of Capitalist Democracy''. Posner has generally been identified as being politically conservative; in recent years, however, he has distanced himself from the positions of the Republican Party, authoring more
liberal rulings involving same-sex marriage and
abortion
Abortion is the early termination of a pregnancy by removal or expulsion of an embryo or fetus. Abortions that occur without intervention are known as miscarriages or "spontaneous abortions", and occur in roughly 30–40% of all pregnan ...
.
In ''
A Failure of Capitalism
''A Failure of Capitalism: The Crisis of '08 and the Descent into Depression'' is a 2009 book by legal scholar Richard Posner. The text was initially published on May 1, 2009, by Harvard University Press. Posner criticizes President George W. Bush ...
'', he writes that the
2008 financial crisis
The 2008 financial crisis, also known as the global financial crisis (GFC), was a major worldwide financial crisis centered in the United States. The causes of the 2008 crisis included excessive speculation on housing values by both homeowners ...
caused him to question the
rational-choice, ''
laissez-faire
''Laissez-faire'' ( , from , ) is a type of economic system in which transactions between private groups of people are free from any form of economic interventionism (such as subsidies or regulations). As a system of thought, ''laissez-faire'' ...
'' economic model that lies at the heart of his law and economics theory.
Early life and education
Posner was born on January 11, 1939, in
New York City
New York, often called New York City (NYC), is the most populous city in the United States, located at the southern tip of New York State on one of the world's largest natural harbors. The city comprises five boroughs, each coextensive w ...
. His father's family were of
Romanian Jewish descent, and his mother's family were
Ashkenazi Jews
Ashkenazi Jews ( ; also known as Ashkenazic Jews or Ashkenazim) form a distinct subgroup of the Jewish diaspora, that emerged in the Holy Roman Empire around the end of the first millennium CE. They traditionally speak Yiddish, a language ...
from
Galicia in the
Austrian Empire
The Austrian Empire, officially known as the Empire of Austria, was a Multinational state, multinational European Great Powers, great power from 1804 to 1867, created by proclamation out of the Habsburg monarchy, realms of the Habsburgs. Duri ...
.
After high school, Posner studied
English literature
English literature is literature written in the English language from the English-speaking world. The English language has developed over more than 1,400 years. The earliest forms of English, a set of Anglo-Frisian languages, Anglo-Frisian d ...
at
Yale University
Yale University is a Private university, private Ivy League research university in New Haven, Connecticut, United States. Founded in 1701, Yale is the List of Colonial Colleges, third-oldest institution of higher education in the United Stat ...
, graduating in 1959 with a
B.A., ''
summa cum laude
Latin honors are a system of Latin phrases used in some colleges and universities to indicate the level of distinction with which an academic degree has been earned. The system is primarily used in the United States. It is also used in some Sout ...
'', and membership in
Phi Beta Kappa
The Phi Beta Kappa Society () is the oldest academic honor society in the United States. It was founded in 1776 at the College of William & Mary in Virginia. Phi Beta Kappa aims to promote and advocate excellence in the liberal arts and sciences, ...
. He then attended
Harvard Law School
Harvard Law School (HLS) is the law school of Harvard University, a Private university, private research university in Cambridge, Massachusetts. Founded in 1817, Harvard Law School is the oldest law school in continuous operation in the United ...
, where he was president of the ''
Harvard Law Review
The ''Harvard Law Review'' is a law review published by an independent student group at Harvard Law School. According to the ''Journal Citation Reports'', the ''Harvard Law Review''s 2015 impact factor of 4.979 placed the journal first out of ...
''. He graduated in 1962 ranked first in his class with an
LL.B., ''magna cum laude''.
Legal career
After law school, Posner was a
law clerk
A law clerk, judicial clerk, or judicial assistant is a person, often a lawyer, who provides direct counsel and assistance to a lawyer or judge by Legal research, researching issues and drafting legal opinions for cases before the court. Judicial ...
for Justice
William J. Brennan Jr. of the
U.S. Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on question ...
from 1962 to 1963. He then served as an attorney-advisor to Commissioner
Philip Elman of the
Federal Trade Commission
The Federal Trade Commission (FTC) is an independent agency of the United States government whose principal mission is the enforcement of civil (non-criminal) United States antitrust law, antitrust law and the promotion of consumer protection. It ...
(FTC); he would later argue that the FTC ought to be abolished.
Posner went on to work in the Office of the Solicitor General in the
United States Department of Justice
The United States Department of Justice (DOJ), also known as the Justice Department, is a United States federal executive departments, federal executive department of the U.S. government that oversees the domestic enforcement of Law of the Unite ...
, under
Solicitor General
A solicitor general is a government official who serves as the chief representative of the government in courtroom proceedings. In systems based on the English common law that have an attorney general or equivalent position, the solicitor general ...
Thurgood Marshall
Thoroughgood "Thurgood" Marshall (July 2, 1908 – January 24, 1993) was an American civil rights lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1967 until 1991. He was the Supreme C ...
.
In 1968, Posner accepted a position teaching at
Stanford Law School
Stanford Law School (SLS) is the Law school in the United States, law school of Stanford University, a Private university, private research university near Palo Alto, California. Established in 1893, Stanford Law had an acceptance rate of 6.28% i ...
.
In 1969, Posner moved to the faculty of the
University of Chicago Law School
The University of Chicago Law School is the Law school in the United States, law school of the University of Chicago, a Private university, private research university in Chicago, Illinois. It employs more than 180 full-time and part-time facul ...
. He was a founding editor of ''
The Journal of Legal Studies
''The Journal of Legal Studies'' is a law journal published by the University of Chicago Press focusing on interdisciplinary academic research in law and legal institutions.
It emphasizes social science approaches, especially those of economics, ...
'' in 1972.
On October 27, 1981, Posner was nominated by President
Ronald Reagan
Ronald Wilson Reagan (February 6, 1911 – June 5, 2004) was an American politician and actor who served as the 40th president of the United States from 1981 to 1989. He was a member of the Republican Party (United States), Republican Party a ...
to a seat on the
United States Court of Appeals for the Seventh Circuit
The United States Court of Appeals for the Seventh Circuit (in case citations, 7th Cir.) is the U.S. United States federal court, federal court with appellate jurisdiction over the United States district court, courts in the following United Stat ...
vacated by Judge
Philip Willis Tone.
Posner was confirmed by the
United States Senate
The United States Senate is a chamber of the Bicameralism, bicameral United States Congress; it is the upper house, with the United States House of Representatives, U.S. House of Representatives being the lower house. Together, the Senate and ...
on November 24, 1981, and received his commission on December 1, 1981. He served as
Chief Judge
Chief judge may refer to:
In lower or circuit courts
The highest-ranking or most senior member of a lower court or circuit court with more than one judge.
* Chief judge (Australia)
* Chief judge (United States)
In supreme courts
Some of Chief ...
of that court from 1993 to 2000 but remained a part-time senior lecturer at the
University of Chicago
The University of Chicago (UChicago, Chicago, or UChi) is a Private university, private research university in Chicago, Illinois, United States. Its main campus is in the Hyde Park, Chicago, Hyde Park neighborhood on Chicago's South Side, Chic ...
.
Judge Posner retired from the federal bench on September 2, 2017. Posner stated that he had originally planned to retire at the age of 80, but instead retired at 78 due to disputes with other judges on the Seventh Circuit over treatment of
pro se
''Pro se'' legal representation ( or ) means to argue on one's own behalf in a legal proceeding, as a defendant or plaintiff in civil cases, or a defendant in criminal cases, rather than have representation from counsel or an attorney.
The ...
litigants.
Posner is a
pragmatist in
philosophy
Philosophy ('love of wisdom' in Ancient Greek) is a systematic study of general and fundamental questions concerning topics like existence, reason, knowledge, Value (ethics and social sciences), value, mind, and language. It is a rational an ...
and an
economist
An economist is a professional and practitioner in the social sciences, social science discipline of economics.
The individual may also study, develop, and apply theories and concepts from economics and write about economic policy. Within this ...
in
legal methodology. He has written many articles and books on a wide range of topics including law and economics, law and literature, the federal judiciary,
moral theory
Ethics is the philosophy, philosophical study of Morality, moral phenomena. Also called moral philosophy, it investigates Normativity, normative questions about what people ought to do or which behavior is morally right. Its main branches inclu ...
,
intellectual property
Intellectual property (IP) is a category of property that includes intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The best-known types are patents, co ...
,
antitrust law
Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust ...
, public intellectuals, and
legal history
Legal history or the history of law is the study of how law has evolved and why it has changed. Legal history is closely connected to the development of civilizations and operates in the wider context of social history. Certain jurists and his ...
. He is also well known for writing on a wide variety of current events including the
2000 presidential election recount controversy,
Bill Clinton
William Jefferson Clinton (né Blythe III; born August 19, 1946) is an American politician and lawyer who was the 42nd president of the United States from 1993 to 2001. A member of the Democratic Party (United States), Democratic Party, ...
's affair with
Monica Lewinsky
Monica Samille Lewinsky (born July 23, 1973) is an American activist. Lewinsky became internationally known in the late 1990s after U.S. President Bill Clinton admitted to having had an affair with her during her days as a White House intern ...
and his resulting impeachment procedure, and the
2003 invasion of Iraq.
His analysis of the
Lewinsky scandal cut across most party and ideological divisions. Posner's greatest influence is through his writings on law and economics; ''
The New York Times
''The New York Times'' (''NYT'') is an American daily newspaper based in New York City. ''The New York Times'' covers domestic, national, and international news, and publishes opinion pieces, investigative reports, and reviews. As one of ...
'' called him "one of the most important
antitrust
Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust l ...
scholars of the past half-century." In December 2004, Posner started a joint
blog
A blog (a Clipping (morphology), truncation of "weblog") is an informational website consisting of discrete, often informal diary-style text entries also known as posts. Posts are typically displayed in Reverse chronology, reverse chronologic ...
with
Nobel Prize
The Nobel Prizes ( ; ; ) are awards administered by the Nobel Foundation and granted in accordance with the principle of "for the greatest benefit to humankind". The prizes were first awarded in 1901, marking the fifth anniversary of Alfred N ...
-winning economist
Gary Becker
Gary Stanley Becker (; December 2, 1930 – May 3, 2014) was an American economist who received the 1992 Nobel Memorial Prize in Economic Sciences. He was a professor of economics and sociology at the University of Chicago, and was a leader of ...
, titled simply "The Becker-Posner Blog".
Both men contributed to the blog until shortly before Becker's death in May 2014, after which Posner announced that the blog was being discontinued.
He also had a blog at
''The Atlantic'', where he discussed the then-current
Great Recession
The Great Recession was a period of market decline in economies around the world that occurred from late 2007 to mid-2009. .
Posner was mentioned in 2005 as a
potential nominee to replace
Sandra Day O'Connor
Sandra Day O'Connor (March 26, 1930 – December 1, 2023) was an American attorney, politician, and jurist who served as an associate justice of the Supreme Court of the United States from 1981 to 2006. Nominated by President Ronald Reagan, O' ...
because of his prominence as a scholar and an appellate judge. Robert S. Boynton wrote in ''
The Washington Post
''The Washington Post'', locally known as ''The'' ''Post'' and, informally, ''WaPo'' or ''WP'', is an American daily newspaper published in Washington, D.C., the national capital. It is the most widely circulated newspaper in the Washington m ...
'' that he believed Posner would never sit on the
Supreme Court
In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...
because despite his "obvious brilliance," he would be criticized for his occasionally "outrageous conclusions," such as his contention "that the
rule of law
The essence of the rule of law is that all people and institutions within a Body politic, political body are subject to the same laws. This concept is sometimes stated simply as "no one is above the law" or "all are equal before the law". Acco ...
is an accidental and dispensable element of legal ideology," his argument that buying and selling children on the
free market
In economics, a free market is an economic market (economics), system in which the prices of goods and services are determined by supply and demand expressed by sellers and buyers. Such markets, as modeled, operate without the intervention of ...
would lead to better outcomes than the present situation, government-regulated
adoption
Adoption is a process whereby a person assumes the parenting of another, usually a child, from that person's biological or legal parent or parents. Legal adoptions permanently transfer all rights and responsibilities, along with filiation, fro ...
, and his support for the legalization of
marijuana
Cannabis (), commonly known as marijuana (), weed, pot, and ganja, List of slang names for cannabis, among other names, is a non-chemically uniform psychoactive drug from the ''Cannabis'' plant. Native to Central or South Asia, cannabis has ...
and
LSD
Lysergic acid diethylamide, commonly known as LSD (from German ; often referred to as acid or lucy), is a semisynthetic, hallucinogenic compound derived from ergot, known for its powerful psychological effects and serotonergic activity. I ...
.
[Boynton, Robert S. Boynton]
"'Sounding Off,' a review of Richard Posner's ''Public Intellectuals''"
, ''The Washington Post Book World'', January 20, 2002.
Posner on Posner Series
Judge Posner was the focus of a "series" of posts (many Q&A interviews with the Judge) done by University of Washington Law Professor
Ronald K. L. Collins. The twelve posts—collectively titled "Posner on Posner"—began on November 24, 2014, and ended on January 5, 2015, and appeared on the Concurring Opinions blog.
Legal and philosophical positions

In Posner's youth and in the 1960s as law clerk to William J. Brennan, he was generally counted as a
liberal. However, in reaction to some of the perceived excesses of the late 1960s, Posner developed a strongly
conservative
Conservatism is a cultural, social, and political philosophy and ideology that seeks to promote and preserve traditional institutions, customs, and values. The central tenets of conservatism may vary in relation to the culture and civiliza ...
bent. He encountered
Chicago School economists
Aaron Director and
George Stigler
George Joseph Stigler (; January 17, 1911 – December 1, 1991) was an American economist. He was the 1982 laureate in Nobel Memorial Prize in Economic Sciences and is considered a key leader of the Chicago school of economics.
Early life and e ...
while a professor at
Stanford
Leland Stanford Junior University, commonly referred to as Stanford University, is a private research university in Stanford, California, United States. It was founded in 1885 by railroad magnate Leland Stanford (the eighth governor of and th ...
.
Posner summarized his views on law and economics in his 1973 book ''The Economic Analysis of Law''.
Today, although generally viewed as to
the right in academia, Posner's
pragmatism
Pragmatism is a philosophical tradition that views language and thought as tools for prediction, problem solving, and action, rather than describing, representing, or mirroring reality. Pragmatists contend that most philosophical topics� ...
, his qualified
moral relativism
Moral relativism or ethical relativism (often reformulated as relativist ethics or relativist morality) is used to describe several Philosophy, philosophical positions concerned with the differences in Morality, moral judgments across different p ...
and
moral skepticism
Moral skepticism (or moral scepticism in British English) is a class of meta-ethical theories all members of which entail that no one has any moral knowledge. Many moral skeptics also make the stronger, modal claim that moral knowledge is i ...
, and his affection for the thought of
Friedrich Nietzsche
Friedrich Wilhelm Nietzsche (15 October 1844 – 25 August 1900) was a German philosopher. He began his career as a classical philology, classical philologist, turning to philosophy early in his academic career. In 1869, aged 24, Nietzsche bec ...
set him apart from most American conservatives. As a judge, with the exception of his rulings with respect to the sentencing guidelines and the recording of police actions, Posner's judicial votes have always placed him on the moderate-to-liberal wing of the Republican Party, where he has become more isolated over time. In July 2012, Posner stated, "I've become less conservative since the Republican Party started becoming goofy." Among Posner's judicial influences are the American jurists
Oliver Wendell Holmes Jr.
Oliver Wendell Holmes Jr. (March 8, 1841 – March 6, 1935) was an American jurist who served as an associate justice of the Supreme Court of the United States, associate justice of the Supreme Court of the United States, U.S. Supreme Cou ...
and
Learned Hand
Billings Learned Hand ( ; January 27, 1872 – August 18, 1961) was an American jurist, lawyer, and judicial philosopher. He served as a federal trial judge on the U.S. District Court for the Southern District of New York from 1909 to 1924 a ...
; he has written that "Holmes is the greatest jurist ... because the sum of his ideas, metaphors, decisions, dissents and other contributions exceeds the sum of contributions of any other jurist of modern times", and he has applied the
Hand formula in a number of his opinions.
In June 2016, Posner was criticized by right-wing media organizations for a column he wrote for ''
Slate
Slate is a fine-grained, foliated, homogeneous, metamorphic rock derived from an original shale-type sedimentary rock composed of clay or volcanic ash through low-grade, regional metamorphism. It is the finest-grained foliated metamorphic ro ...
'' in which he stated, "I see absolutely no value to a judge of spending decades, years, months, weeks, day, hours, minutes, or seconds studying the Constitution, the history of its enactment, its amendments, and its implementation."
He has called his approach to judging pragmatic. "I pay very little attention to legal rules, statutes, constitutional provisions. ... A case is just a dispute. The first thing you do is ask yourself—forget about the law—what is a sensible resolution of this dispute? The next thing ... is to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. And the answer is that's actually rarely the case. When you have a Supreme Court case or something similar, they're often extremely easy to get around."
Abortion
Posner has written several opinions sympathetic to
abortion rights
Abortion-rights movements, also self-styled as pro-choice movements, are movements that advocate for legal access to induced abortion services, including elective abortion. They seek to represent and support women who wish to terminate their p ...
, including a decision that held that late term abortion was constitutionally protected in some circumstances.
In November 2015, Posner authored a decision in ''Planned Parenthood of Wisconsin v. Schimel'' striking down regulations on abortion clinics in Wisconsin. He rejected the state's argument that the laws were written to protect the health of women and not to make abortion more difficult to obtain. Accusing the state of indirectly trying to ban abortions in the state Posner wrote, "They
isconsinmay do this in the name of protecting the health of women who have abortions, yet as in this case the specific measures they support may do little or nothing for health, but rather strew impediments to abortion."
Animal rights
Posner rejects an ethic of strong animal rights on pragmatic grounds (where such an ethic posits the moral irrelevance of species membership). He recognizes the philosophical force of arguments for strong animal rights, but maintains that human intuition about the paramount value of human life makes it impossible to accommodate an ethic of strong animal rights. Posner, a self-avowed moral anti-realist, does not present his critique of strong animal rights as a deductive proof. Instead, he highlights the practical importance of intuition and emotion over abstract argument.
In a 2000 ''
Yale Law Journal
''The Yale Law Journal'' (YLJ) is a student-run law review affiliated with the Yale Law School. Published continuously since 1891, it is the most widely known of the eight law reviews published by students at Yale Law School. The journal is one ...
'' book review on the title "Rattling the Cage" by
Steven M. Wise, Posner again criticized the legal notion of animal rights. In the review, Posner argues that Wise's approach, using the cognitive ability of animals compared to that of very young normal human beings as a basis for rights-worthiness, is arbitrary and in contrast with major traditional and contemporary philosophies (including the theology of
Thomas Aquinas
Thomas Aquinas ( ; ; – 7 March 1274) was an Italian Dominican Order, Dominican friar and Catholic priest, priest, the foremost Scholasticism, Scholastic thinker, as well as one of the most influential philosophers and theologians in the W ...
for one and
utilitarianism
In ethical philosophy, utilitarianism is a family of normative ethical theories that prescribe actions that maximize happiness and well-being for the affected individuals. In other words, utilitarian ideas encourage actions that lead to the ...
for another). In addition, he points out that this basis for rights has problematic implications—including that it might soon make some computers more worthy of rights than some humans, a conclusion he calls absurd. Posner goes on to reason that granting human-like rights to animals is fraught with implications which could radically disrupt or devalue the rights of human beings. He alludes to Hitler's zoophilia as evidence that respect for animals and humaneness toward human beings are not necessarily associated. Arguing that the analogy of animal rights to the civil rights movement lacks imagination and is not very apt, Posner posits that animal welfare might be better protected by other legal models, one example of which would be stronger laws making animals property, since, he asserts, people tend to protect what they own.
Posner engaged in a debate with the philosopher
Peter Singer
Peter Albert David Singer (born 6 July 1946) is an Australian moral philosopher who is Emeritus Ira W. DeCamp Professor of Bioethics at Princeton University. Singer's work specialises in applied ethics, approaching the subject from a secu ...
in 2001 at ''
Slate magazine
''Slate'' is an online magazine that covers current affairs, politics, and culture in the United States. It was created in 1996 by former ''The New Republic, New Republic'' editor Michael Kinsley, initially under the ownership of Microsoft as ...
.'' He agrees that "gratuitous cruelty to and neglect of animals is wrong and that some costs should be incurred to reduce the suffering of animals raised for food or other human purposes or subjected to medical or other testing and experimentation," but rejects grounding this view in an ethic of strong animal rights, contending that such a premise entails conclusions inconsistent with the reality of human society and psychology. He further states that people whose opinions were changed by consideration of the philosophical arguments presented in Singer's book ''
Animal Liberation'' failed to see the "radicalism of the ethical vision that powers
heir
Inheritance is the practice of receiving private property, titles, debts, entitlements, privileges, rights, and obligations upon the death of an individual. The rules of inheritance differ among societies and have changed over time. Offi ...
view on animals, an ethical vision that finds greater value in a healthy pig than in a profoundly retarded child, that commands inflicting a lesser pain on a human being to avert a greater pain to a dog, and that, provided only that a chimpanzee has 1 percent of the mental ability of a normal human being, would require the sacrifice of the human being to save 101 chimpanzees."
Posner emphasizes the importance of facts over arguments in creating social change. He states that his moral intuition says that "it is wrong to give as much weight to a dog's pain as to an infant's pain," and that "
his
His or HIS may refer to:
Computing
* Hightech Information System, a Hong Kong graphics card company
* Honeywell Information Systems
* Hybrid intelligent system
* Microsoft Host Integration Server
Education
* Hangzhou International School, ...
is a moral intuition deeper than any reason that could be given for it and impervious to any reason that you or anyone could give against it." Instead, Posner claims that "
xpanding and invigoratingthe laws that protect animals will require not philosophical arguments for reducing human beings to the level of the other animals but facts, facts that will stimulate a greater empathetic response to animal suffering and facts that will alleviate concern about the human costs of further measures to reduce animal suffering."
[
]
Antitrust
Along with Robert Bork
Robert Heron Bork (March 1, 1927 – December 19, 2012) was an American legal scholar who served as solicitor general of the United States from 1973 until 1977. A professor by training, he was acting United States Attorney General and a judge on ...
, Posner helped shape the antitrust policy changes of the 1970s through his idea that 1960s antitrust laws were in fact making prices higher for the consumer rather than lower, while he viewed lower prices as the essential end goal of any antitrust policy. Posner's and Bork's theories on antitrust evolved into the prevailing view in academia and at the Justice Department in the George H. W. Bush administration; they have remained the consensus view in both the Justice Department and among legal academics of antitrust.
''The Bluebook''
'' The Bluebook'' is the style guide that prescribes the most widely used legal citation system in the United States. Posner is "one of the founding fathers of ''Bluebook'' abolitionism, having advocated it for almost twenty-five years, ever since his 1986 ''University of Chicago Law Review
The ''University of Chicago Law Review'' ( Maroonbook abbreviation: ''U Chi L Rev'') is the flagship law journal published by the University of Chicago Law School. Up until 2020, it utilized a different citation system than most law journals—the ...
'' article on the subject."[Somin, Ilya (2011-01-25]
Richard Posner on the Bluebook
''Volokh Conspiracy
The Volokh Conspiracy ( ) is a Legal blogs, legal blog co-founded in 2002 by law professor Eugene Volokh, covering legal and political issues from an ideological orientation it describes as "generally Libertarianism in the United States, libertar ...
'' In a 2011 ''Yale Law Journal
''The Yale Law Journal'' (YLJ) is a student-run law review affiliated with the Yale Law School. Published continuously since 1891, it is the most widely known of the eight law reviews published by students at Yale Law School. The journal is one ...
'' article, he wrote:
''The Bluebook: A Uniform System of Citation'' exemplifies hypertrophy in the anthropological sense. It is a monstrous growth, remote from the functional need for legal citation forms, that serves obscure needs of the legal culture and its student subculture.
He describes those needs as unrelated to practical legal activity but instead as social and political.
In the same article, Posner gives an excerpt of the entire citation style guide included (as an appendix) in the short manual he gives his own law clerks (whom he describes as "very smart"); the appendix is about 2–3 pages long, and he says the entire manual is about 1% as long as the Bluebook.
Drugs
Posner opposes the U.S. " War on Drugs" and called it " quixotic". In a 2003 CNBC
CNBC is an American List of business news channels, business news channel owned by the NBCUniversal News Group, a unit of Comcast's NBCUniversal. The network broadcasts live business news and analysis programming during the morning, Day ...
interview he discussed the difficulty of enforcing criminal marijuana
Cannabis (), commonly known as marijuana (), weed, pot, and ganja, List of slang names for cannabis, among other names, is a non-chemically uniform psychoactive drug from the ''Cannabis'' plant. Native to Central or South Asia, cannabis has ...
laws, and asserted that it is hard to justify the criminalization of marijuana when compared to other substances. In a talk at Elmhurst College
Elmhurst University is a private university in Elmhurst, Illinois, United States. It has a tradition of service-oriented learning and an affiliation with the United Church of Christ. The university changed its name from Elmhurst College on July ...
in 2012, Posner said that "I don't think that we should have a fraction of the drug laws that we have. I think it's really absurd to be criminalizing possession or use or distribution of marijuana."
National security
At the ''Cybercrime 2020: The Future of Online Crime and Investigations'' conference held at Georgetown University Law Center
Georgetown University Law Center is the Law school in the United States, law school of Georgetown University, a Private university, private research university in Washington, D.C., United States. It was established in 1870 and is the largest law ...
on November 20, 2014, Posner, in addition to further reinforcing his views on privacy being over-rated, stated that "If the NSA wants to vacuum all the trillions of bits of information that are crawling through the electronic worldwide networks, I think that's fine. ... Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct," Posner added. "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." Posner also criticized mobile OS companies for enabling end-to-end encryption
End-to-end encryption (E2EE) is a method of implementing a secure communication system where only communicating users can participate. No one else, including the system provider, telecom providers, Internet providers or malicious actors, can ...
in their newest software. "I'm shocked at the thought that a company would be permitted to manufacture an electronic product that the government would not be able to search" he said.
Patent and copyright law
Posner has expressed concerns, on the blog he contributed to with Gary Becker, that both patent and copyright protection, though particularly the former, may be excessive. He argues that the cost of inventing must be compared to the cost of copying in order to determine the optimal patent protection for an inventor. When patent protection is too strongly in favor of the inventor, market efficiency is decreased. He illustrates his argument by comparing the pharmaceutical industry (where the cost of invention is high) with the software industry (where the cost of invention is relatively low).
However, Posner suggested that strengthening copyright law, including a possible bar on linking to or paraphrasing copyrighted materials, may be necessary as a means to prevent what he views as free riding on newspaper journalism. His co-blogger Gary Becker
Gary Stanley Becker (; December 2, 1930 – May 3, 2014) was an American economist who received the 1992 Nobel Memorial Prize in Economic Sciences. He was a professor of economics and sociology at the University of Chicago, and was a leader of ...
simultaneously posted a contrasting opinion that while the Internet
The Internet (or internet) is the Global network, global system of interconnected computer networks that uses the Internet protocol suite (TCP/IP) to communicate between networks and devices. It is a internetworking, network of networks ...
might hurt newspapers, it will not harm the vitality of the press, but rather embolden it.
Police recording
As part of a three-judge panel on the 7th Circuit weighing a challenge to the Illinois Eavesdropping Act, which bars the secret recording of conversations without the consent of all the parties to the conversation, Posner was to deliver another memorable quote. At issue was the constitutionality of the Illinois wiretapping law, which makes it illegal to record someone without consent even when filming public acts like arrests in public. Posner interrupted the ACLU
The American Civil Liberties Union (ACLU) is an American nonprofit civil rights organization founded in 1920. ACLU affiliates are active in all 50 states, Washington, D.C., and Puerto Rico. The budget of the ACLU in 2024 was $383 million.
...
after just 14 words, stating, "Yeah, I know. But I'm not interested, really, in what you want to do with these recordings of peoples' encounters with the police. ..." Posner continued: "Once all this stuff can be recorded, there's going to be a lot more of this snooping around by reporters and bloggers. ... I'm always suspicious when the civil liberties people start telling the police how to do their business." The 7th Circuit upheld the challenge, 2–1, striking down the Eavesdropping Act, but Posner wrote a dissenting opinion.
Prisoners
In a dissent from an earlier ruling by his protégé Frank Easterbrook, Posner wrote that Easterbrook's decision that female guards could watch male prisoners while in the shower or bathroom must stem from a belief that prisoners are "members of a different species, indeed as a type of vermin, devoid of human dignity and entitled to no respect. ... I do not myself consider the 1.5 million inmates of American prisons and jails in that light."
Race and public education
Posner's views of public education policy are informed by his view that groups of students differ in intellectual ability, and therefore, that it is faulty to impose uniform educational standards on all schools. His view in this regard is undergirded by his view that different races differ in intelligence. (However, Posner says that he thinks it is "highly unlikely" that these differences are rooted in genetics, rather than environment.)
In a blog post, Posner wrote, "I suggest that the only worthwhile reforms of teacher compensation are raising teacher wages uniformly, providing recognition and modest bonuses for outstanding teachers, and increasing hiring standards."
In the same post, he wrote, "I am not clear what we should think the problem of American education (below the college level) is. Most children of middle-class ... Americans are white or Asian and attend good public or private schools, usually predominantly white. The average white IQ is of course 100 and the Asian (like the Jewish) almost one standard deviation higher, that is, 115. The average black IQ is 85, a full standard deviation below the white average, and the average Hispanic IQ has been estimated recently at 89. Black children in particular often come from disordered households, which has a negative effect on ability to learn and perhaps indeed on IQ. ... Increasingly, black and Hispanic students find themselves in schools with few white or Asian students. The challenge to American education is to provide a useful education to the large number of Americans who are unlikely to benefit from a college education or from high school courses aimed at preparing students for college."
Same-sex marriage
In September 2014, Posner authored the opinions in the consolidated cases of ''Wolf v. Walker'' and ''Baskin v. Bogan'' challenging Wisconsin and Indiana's state level same-sex marriage bans. The opinion of the three-judge panel on the 7th Circuit Court of Appeals ruled that Indiana and Wisconsin's bans on same-sex marriage were unconstitutional, affirming a lower court ruling. During oral arguments, Wisconsin's attorney general cited tradition as a reason for maintaining the ban, prompting Posner to note that: "It was tradition to not allow blacks and whites to marry—a tradition that got swept away." Though Posner argued in his 1992 book '' Sex and Reason'' that prohibitions against gay marriage were rationally justified, he held in the 2014 cases that the same-sex marriage bans were both "a tradition of hate" and "savage discrimination". Posner wrote the opinion for the unanimous panel, finding the laws unconstitutional under the Equal Protection Clause. The Supreme Court then denied a writ of certiorari and left Posner's ruling to stand.
Torture
When reviewing Alan Dershowitz's book, ''Why Terrorism Works: Understanding the Threat, Responding to the Challenge'', Posner wrote in the September 2002 ''The New Republic'', "If torture is the only means of obtaining the information necessary ticking time bomb scenario, to prevent the detonation of a nuclear bomb in Times Square, torture should be usedand will be usedto obtain the information.... No one who doubts that this is the case should be in a position of responsibility."
Voter identification laws
In 2007, Posner wrote the majority opinion upholding Indiana's photo identification law in the ''Crawford v. Marion County Election Board'' case. He wrote that "absence of prosecutions" for voter fraud is explained in part by "the extreme difficulty of apprehending a voter impersonator," and that such impersonators are "almost impossible to catch without a voter ID requirement".[Virginia Public Law and Legal Theory Research Paper No. 2014-56; Virginia Law and Economics Research Paper No. 2014-15.] The law was subsequently upheld at the United States Supreme Court. In 2013, Posner disavowed support for the ruling due to concerns about voter suppression caused by the law. He stated that judges "weren’t given the information that would enable that balance to be struck" between preventing fraud and protecting voters’ rights. In 2014, Posner wrote a 30-page dissent opposing the upholding of a Wisconsin voter ID law.
Judicial career
Posner is one of the most prolific legal writers, through both the number and topical breadth of his opinions, to say nothing of his scholarly and popular writings. Unlike many other judges, he writes all his own opinions. Nobel Memorial Prize in Economic Sciences, Nobel Laureate economist Robert Solow says that Posner "is an apparently inexhaustible writer on ... nearly everything. To call him a polymath would be a gross understatement. ... Judge Posner evidently writes the way other men breathe", though the economist describes the judge's grasp of economics as, "in some respects, ... precarious."
In 1999, Posner was welcomed as a private mediation, mediator among the parties involved in the United States v. Microsoft, Microsoft antitrust case.
A 2000 study published by Fred Shapiro in the University of Chicago's ''Journal of Legal Studies'' found that Posner is the most-cited legal scholar of all time by a considerable margin, as Posner's work has generated 7,981 cites compared to the runner-up Ronald Dworkin's 4,488 cites.[ In 2021, using a modified methodology (including the HeinOnline database and searches for citations to books), Shapiro found that Posner was the most-cited United States legal scholar, generating 48,852 cites to runner-up Cass Sunstein's 35,584.]
Notable cases
In his decision in the 1997 case ''State Oil Co. v. Khan'', Posner wrote that a ruling 1968 antitrust precedent set by the Supreme Court
In most legal jurisdictions, a supreme court, also known as a court of last resort, apex court, high (or final) court of appeal, and court of final appeal, is the highest court within the hierarchy of courts. Broadly speaking, the decisions of ...
was "moth-eaten", "wobbly", and "unsound". Nevertheless, he abided by the previous decision in his ruling. The Supreme Court granted certiorari and overturned the 1968 ruling unanimously; Sandra Day O'Connor
Sandra Day O'Connor (March 26, 1930 – December 1, 2023) was an American attorney, politician, and jurist who served as an associate justice of the Supreme Court of the United States from 1981 to 2006. Nominated by President Ronald Reagan, O' ...
wrote the opinion and spoke positively of both Posner's criticism and his decision to abide by the ruling until the Court decided to change it.
Tort law
In ''U.S. Fidelity & Guaranty Co. v. Jadranska Slobodna Plovidba'', 683 F.2d 1022 (7th Cir. 1982), Posner revived Learned Hand, Learned Hand's Calculus of negligence, economic efficiency theory of negligence law.
In ''Indiana Harbor Belt Railroad Co. v. American Cyanamid Co.'' (1990), Posner lowered the standard of legal liability a railroad faced for a hazardous waste spill. The case became a staple of first year torts courses taught in Law school in the United States, American law schools, where the case is used to address the question of when it is better to use negligence liability or strict liability.
In 1999, Posner applied the ''lex loci delicti commissi'' rule on choice of law rather than the Restatement of Torts, Second when rejecting a claim by an Illinois dentist who slip and fall, slipped and fell in Acapulco, Mexico. In 2003, Posner affirmed a punitive damages award of 37.2 times the compensatory damages guests won from a bedbug infested Motel 6. In 2003, Posner found that co-workers who did not prevent a hypoglycemic diabetic's fatal attempt to drive himself home violated no duty to rescue.
Contract law
In ''Morin Building Products Co. v. Baystone Construction, Inc.'' (1983), Posner held that the Uniform Commercial Code presumes contracts impose an objective standard upon what would subjectively be illusory promises. In 1987, Posner dissented when Judge Frank H. Easterbrook, joined by Richard Dickson Cudahy, found that a stockbroker could sue his former employer under SEC Rule 10b-5 after he quit shortly before the firm's lucrative unannounced merger. In 1990, Posner found that Delaware corporate law did not permit an airline's board to adopt a shareholder rights plan, poison pill provision that encouraged its machinists to take strike action if its pilots' takeover attempt succeeded. In 1991, Posner held that good faith (law), good faith performance is a factual question of the defendant's state of mind that must be proven at trial.
Civil rights
In 1984, Posner wrote for the ''en banc'' circuit when it held that a consent decree regulating law enforcement Red Squads did not apply to FBI terrorism investigations, over the dissent of Judge Richard Dickson Cudahy. In January 2001, Posner loosened that consent decree to allow the Chicago Police Department to conduct counterterrorism operations.
In ''United States v. Marshall'' (1990), Posner dissented when Frank H. Easterbrook, writing for the ''en banc'' circuit, held that the punishment for possession of Lysergic acid diethylamide, LSD is determined by the weight of the carrier it is found within. The circuit's judgment was affirmed, under the name ''Chapman v. United States'' (1991), by the Supreme Court of the United States.
In 1995, Posner, joined by Judge Walter J. Cummings Jr., affirmed an injunction blocking Illinois from closing schools on Good Friday as a violation of the Establishment Clause, over the dissent of Judge Daniel Anthony Manion. In 2000, Posner found that partners at a big law firm could be considered employees with regard to the Age Discrimination in Employment Act of 1967. Posner found that secondary liability attaches to a file sharing service for contributory copyright infringement in ''In re Aimster Copyright Litigation'' (2003).
Awards and honors
A 2004 poll by ''Legal Affairs'' magazine named Posner as one of the top twenty legal thinkers in the U.S.
In March 2007, the ''Harvard Law Review
The ''Harvard Law Review'' is a law review published by an independent student group at Harvard Law School. According to the ''Journal Citation Reports'', the ''Harvard Law Review''s 2015 impact factor of 4.979 placed the journal first out of ...
'' dedicated an issue of faculty written case comments in tribute of Judge Posner. In 2008, the ''University of Chicago Law Review
The ''University of Chicago Law Review'' ( Maroonbook abbreviation: ''U Chi L Rev'') is the flagship law journal published by the University of Chicago Law School. Up until 2020, it utilized a different citation system than most law journals—the ...
'' published a commemorative issue: "Commemorating Twenty-five Years of Judge Richard A. Posner." One of Posner's former clerks, Tim Wu, calls Posner "probably America's greatest living jurist." Another of Posner's former legal clerks, Lawrence Lessig, wrote, "There isn't a federal judge I respect more, both as a judge and person." The former dean of Yale Law School, Anthony T. Kronman, said that Posner was "one of the most rational human beings" he had ever met.
Personal life
Posner and his wife lived in Hyde Park, Chicago, for many years. His son Eric Posner is also a prominent legal scholar and teaches at the University of Chicago Law School
The University of Chicago Law School is the Law school in the United States, law school of the University of Chicago, a Private university, private research university in Chicago, Illinois. It employs more than 180 full-time and part-time facul ...
. Posner is a self-described "cat person" and is devoted to his Maine Coon, Pixie. Posner appeared with his previous cat, a Maine Coon named Dinah, in a photograph accompanying a lengthy profile (of Posner) in ''The New Yorker'' in 2001.
He has been known to illustrate legal points in his opinions with elaborate cat-related metaphors and examples.
Posner was diagnosed with Alzheimer's disease in early 2018, approximately six months after leaving the bench, and as of 2022 resides in a nursing facility.
Selected works
Books
* 1973 ''Economic Analysis of Law'', 1st ed.
** 2007 ''Economic Analysis of Law'', 7th ed.,
** 2010 ''Economic Analysis of Law'', 8th ed.,
** 2014 ''Economic Analysis of Law'', 9th ed.
* 1978 ''Antitrust Law: An Economic Perspective''
** 2001 ''Antitrust Law'', 2nd ed.,
* 1981
The Economics of Justice
',
* 1985 ''The Federal Courts: Crisis and Reform''
** 1996
The Federal Courts: Challenge and Reform
' (2d ed.),
* 1988 ''Law and Literature: A Misunderstood Relation'',
** 1998 ''Law and Literature'' (revised and enlarged ed.),
** 2009 ''Law and Literature'', 3rd. ed.,
* 1990
The Problems of Jurisprudence
',
* 1990 ''Cardozo: A Study in Reputation'',
* 1992
Sex and Reason
',
* 1995
Overcoming Law
', , Among the topics is a critique of Robert Bork
Robert Heron Bork (March 1, 1927 – December 19, 2012) was an American legal scholar who served as solicitor general of the United States from 1973 until 1977. A professor by training, he was acting United States Attorney General and a judge on ...
's constitutional theories, review of books about the legal system in the Third Reich, and a discussion of the legal culture reflected in the works of Tom Wolfe and E.M. Forster.
* 1995 ''Aging and Old Age'',
* 1996 ''Law and Legal Theory in England and America'',
* 1999
The Problematics of Moral and Legal Theory
',
* 1999 ''An Affair of State: The Investigation, Impeachment, and Trial of President Clinton''. Cambridge, Mass.: Harvard University Press, .
* 2001
Frontiers of Legal Theory
',
* 2001 ''Breaking the Deadlock: The 2000 Presidential Election and the Courts'',
* 2002
Public Intellectuals: A Study of Decline
',
* 2003
Law, Pragmatism and Democracy
',
* 2003
The Economic Structure of Intellectual Property Law
' (Harvard Univ. Press) (with William Landes),
* 2004 ''Catastrophe: Risk and Response'',
* 2005 ''Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11'',
* 2006 ''Uncertain Shield: The U.S. Intelligence System in the Throes of Reform'',
* 2006 ''Not a Suicide Pact: The Constitution in a Time of National Emergency'',
* 2007 ''The Little Book of Plagiarism'',
* 2007 ''Countering Terrorism: Blurred Focus, Halting Steps'',
* 2008
How Judges Think
',
* 2009 ''A Failure of Capitalism, A Failure of Capitalism: The Crisis of '08 and the Descent into Depression'',
* 2009 ''Uncommon Sense: Economic Insights, from Marriage to Terrorism'' (with Gary Becker
Gary Stanley Becker (; December 2, 1930 – May 3, 2014) was an American economist who received the 1992 Nobel Memorial Prize in Economic Sciences. He was a professor of economics and sociology at the University of Chicago, and was a leader of ...
)
* 2010
The Crisis of Capitalist Democracy
',
* 2013 ''Reflections on Judging''
* 2013
The Behavior of Federal Judges
', (with Lee Epstein and William Landes)
* 2016 ''Divergent Paths: The Academy and the Judiciary''
* 2017 ''The Federal Judiciary: Strengths and Weaknesses''
Articles
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See also
* American philosophy
* ''International Airport Centers, L.L.C. v. Citrin'' (2006)
* List of law clerks of the Supreme Court of the United States (Seat 3)
* List of Jewish American jurists
* ''Moore v. Madigan'' (2012)
* ''Schurz Communications, Inc. v. FCC'' (1992)
* ''United States v. Garcia'' (2007)
* List of United States federal judges by longevity of service
References
Further reading
*
*
External links
*
"Curriculum Vitae of Judge Richard A. Posner"
(comprehensive list to October 14, 2014, of Posner's scholarly, journalistic, and judicial writing, and testimony)
Project Posner
Richard A. Posner
at the University of Chicago Law School
The University of Chicago Law School is the Law school in the United States, law school of the University of Chicago, a Private university, private research university in Chicago, Illinois. It employs more than 180 full-time and part-time facul ...
Richard A. Posner
at the University of Chicago
The University of Chicago (UChicago, Chicago, or UChi) is a Private university, private research university in Chicago, Illinois, United States. Its main campus is in the Hyde Park, Chicago, Hyde Park neighborhood on Chicago's South Side, Chic ...
The Becker-Posner Blog
Posner's blog
at ''The Atlantic''
Profile
an
at Research Papers in Economics/RePEc
*
*
*
Richard A. Posner
at the ''complete review''
"The Bench Burner"
interview/article in ''The New Yorker'', Dec. 10, 2001
Lawrence A. Cunningham, Cardozo and Posner: A Study in Contracts, 36 William & Mary Law Review 1379 (1995)
*
Buzzfeed article
on Posner's decision in ''Same-sex marriage in Indiana#Baskin v. Bogan, Baskin v. Bogan''
Preliminary Description for the Richard A. Posner 1949–2018
at th
University of Chicago Research Center
*
*
{{DEFAULTSORT:Posner, Richard Allen
1939 births
Living people
20th-century American lawyers
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Member of the Mont Pelerin Society