Sex, Economics, and Other Legal Matters

Posner: It was pretty original. There are hints of it in Ronald Coase's article on social cost. He wasn't too clear about it, but the implication that I drew was that he thought the English judges had been trying to make an economically sensible law of nuisance. And Harold Demsetz, one of the Chicago economists now at UCLA, wrote something which hinted at this.

The idea was criticized on two basic grounds. One, that it doesn't fit the facts. There are too many anomalies, too many rules, too many outcomes in common law cases that can't be explained as efficiency-promoting. That is one criticism, and obviously there is some merit to it. Another criticism objects to the notion that judges would be concerned with economic efficiency rather than with more distinctively legal or moral concepts such as fairness. That sticks in the craw of many lawyers. By now, I think everyone agrees there is strong economic content in the common law, and the law generally, although how important it is can be questioned.

Reason: In Economic Analysis of Law [1973], you made large claims for economic analysis, not just regarding contracts or antitrust cases but also in criminal law, family law, racial discrimination, and federalism.

Posner: Yes, that's correct. Oddly, the area where the most resistance has been encountered is the criminal law. There is a really interesting body of economic writing about criminal law, about both deterrence and punishments -- the whole punishment structure. Also, about the doctrines of attempt and conspiracy. I think this is very interesting stuff that has made no real impression in the teaching of law. There was an economist in the United States Sentencing Commission, and there is definitely an economic flavor in the federal sentencing guidelines. But apart from that, the criminal bar and professoriate have not been receptive.

Feminists, in recent years, have picked up the law and economics ball and have run with it. It's a very interesting inversion of conventional positions, but a number of radical feminists now are strongly advocating the commodification of family relations. What they say is we want to commodify, to put a pecuniary value on, the work that women do outside the markets, because if it's not commodified, not monetized, it's not recognized in our society as productive work.

Reason: While you were attacked from the start for applying economics to all sorts of law, as a judge you have been attacked from the other side for not consistently using economics in your decisions. What do you think about that criticism?

Posner: There are two aspects of that. First, there are simply many legal issues to which economics doesn't speak. When you are talking about the teaching of law or scholarly writing about law, the focus tends to be on the big questions and large principles that inform a field of law. There, I think the economic approach is very fruitful. But in the actual day-to-day litigation process, many of the cases involve issues that are of a purely interpretive, purely factual character, dealing with the details of comprehensive statutes, and they just don't lend themselves to economic analysis. Many other cases do. I have written many tort, contract, antitrust, and labor cases where I thought an economic angle was valuable. But we're talking about 1,800 judicial opinions.

The second point is that the experience of being a judge is bound to moderate one's views. When you are dealing with large doctrinal policy issues in a rather abstract way, it's very easy to allow your general outlook on things to carry you to foreordained conclusions. But when you are actually forced to consider both sides of the case, often you realize there is more to be said on the other side of the case than you might have thought. So a lot of statutes that I would have ridiculed as preposterous interventionism in the economy, when looked at up close in the context of the specific case, make more sense. I have learned there is more to be said for some of these interventionist laws than I had initially thought.

Reason: You have described yourself as a pragmatist, and you've been described by others as an eclectic libertarian. Do you see yourself as a libertarian? I know you are a follower of John Stuart Mill in some ways.

Posner: Yes, I regard myself as a libertarian, in a sense that has virtually disappeared from the American public scene. It is basically the Millian sense, but without buying into all of Mill's views. Apart from the fact that he was writing almost 150 years ago, his thought isn't entirely consistent. He had a lot of specific views that seem very strange to me. But I think of myself as someone who believes that the government should intervene only where private activity is palpably harmful or where there are external benefits. For example, an educated population benefits the society as a whole. You benefit from the fact that other people are educated, just as you benefit from the fact that other people subscribe to the telephone service. Where there are external benefits, there is a case for government intervention.

The reason libertarianism doesn't have much support anymore in the U.S. is that liberals, as they describe themselves today, believe in freedom of personal behavior -- sexual behavior and so on -- but want to regulate markets, whereas the conservatives want markets to be free but seek to regulate people's personal behavior. The libertarian doesn't like either form of regulation, unless it meets pretty tight criteria: The target of government intervention has to be an activity that either imposes external costs or creates external benefits. That position, I think, has very little appeal.

Reason: Most legal pragmatists -- people like Richard Rorty -- are from the left. Yet you describe yourself as a pragmatist, and your views are generally considered right-wing.

Posner: There is a historical, accidental connection between pragmatism and leftism, personified by John Dewey. For Dewey the enemy was religion. He thought religion, and forms of scientific thought that are successors to religion and promise ultimate truth, interfered with social progress, because he associated social progress with experimentation. Experimentation implies that you don't know the answer; that is why you have the experiment. So Dewey and successors like Dick Rorty are fighting against a kind of Platonic heritage, the notion that there are ultimate truths that are knowable, and once we know them we have no reason to listen to other people. That perspective is very different from the sense that everything is in flux, implying experimentation.

The other association of pragmatism with the left is that philosophical pragmatism, with its skepticism about truth claims, has an uncomfortable resemblance to the thought of the postmodernists, who are invariably politically radical. People like Michel Foucault or Jacques Derrida seem to want to challenge all kinds of structure and thought in society, and that seems radical and destabilizing. People who are drawn to that kind of intellectual anarchism, or who think that the important thing is knocking religion off its pedestal, are going to be left-wing.

My sense of pragmatism is not philosophical pragmatism but the ordinary-language meaning of the term. When people say Americans are pragmatists, they don't mean they are postmodernists with strong philosophical views about the correspondence theory of truth. They mean they are not interested in large theoretical questions; they are interested in practical solutions to current problems. That is the lay sense of pragmatism and also my sense. I don't want to get tangled in metaphysical questions. I didn't always feel this way, but today I don't want to argue that efficiency is the most important thing in the world and aggregate wealth is the only thing society should care about. I can defend an emphasis on efficiency in the law on practical grounds, which will create results most people like, but I'm not prepared to erect a metaphysics of efficiency that will prove that's the only thing we should be worrying about.