Sex, Economics, and Other Legal Matters

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 soft-spoken, with a gentle good humor. His conversation, as might be expected, is wide-ranging: 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.

Another thing that is important here is the general deregulation movement, which made microeconomics seem more important to public policy because of the criticisms of the regulatory schemes: regulation of airlines and other forms of transportation, financial institutions, communications, and so on. Criticisms were pitched on microeconomic grounds, so people became more familiar with concepts of marginal cost, monopoly, barriers to entry, and so on. So the antitrust economics, the expansion of economic thinking into other areas of law, and the deregulation movement made lawyers very sensitive to economic criticisms of law.

Reason: You were born in 1939 in New York City. Your father was a lawyer and your mother, you've said, was fairly left-wing.

Posner: Yeah, she was a public school teacher. She was very left-wing.

Reason: And you knew the Rosenberg kids when you were growing up.

Posner: Only slightly. But shortly after their parents were executed, their adoptive parents, whom my parents knew, brought these kids to my house. I don't know quite how the idea originated, but my mother asked me whether it would be all right to give these unfortunate children my electric train. And I said fine, because I had outgrown electric trains. I was already 13 or 14. I mention this because there was once an article about me -- this is really weird -- claiming that the reason I became conservative was a deep resentment that my mother had taken my electric trains and given them to these spies' children. (Laughter.)

Reason: When you came to Chicago, I suppose you had already known or heard of people like Ronald Coase, Milton Friedman, Gary Becker, and Aaron Director.

Posner: Aaron Director had retired. He was living near Stanford and had an office in the Stanford Law School. I recognized the name when I started teaching at Stanford in 1968, and I went into his office and introduced myself. I became very friendly with him. Then in that spring quarter, George Stigler visited Stanford, and through Aaron I became very friendly with George. Through Aaron Director I was put on a task force on antitrust policy for the president-elect, the infamous Nixon. The task force was headed by George Stigler, and Ronald Coase was one of the members. I met Milton shortly afterwards. That year I learned about the Chicago approach to antitrust.

Reason: In The Economics of Justice (1981), you described the common law as a tool to maximize aggregate social wealth. You said that is what judges sought to do through their decisions. Was this an original insight, and what attacks were made against it at the time?

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