United States: There'll Always Be Posner: An Appreciation

Last Updated: September 6 2017
Article by Stephen J. McConnell

Back in 2010 we started titling some of our posts " There'll Always Be Posner," in mimicry of the "There'll Always Be an England" squibs in The New Yorker. Just as there is something uniquely charming, majestic and, occasionally, flat-out weird about news from the quirky island that formerly ruled over us, there is something uniquely charming, majestic, and, occasionally, flat-out weird in legal opinions authored by Seventh Circuit Judge Richard Posner. Or, we should say, former judge, as he stepped down from the bench this past weekend.

When we arrived at the University of Chicago Law School 35 years ago this month, Posner had recently vacated his full-time professorship at U of C in favor of an Article III position. Nevertheless, he continued to teach classes in Hyde Park. His influence on campus remained ubiquitous. Some professors (e.g., William Landes and Frank Easterbrook) continued to develop Posner's law and economics analysis. Even professors who parted company with Posner's bottom line positions, such as Richard Epstein and Cass Sunstein, recognized the force of Posner's breakthroughs and incorporated them, or at least took them into account, in their own scholarship.

While Posner's work in integrating law and economics is an enormous achievement, there is so much more to his contributions to legal studies. To begin with, his sheer output has been staggering. Posner has authored over 50 books and 500 articles. The Journal of Legal Studies counted over 7981 cites of Posner and rated him the most cited legal scholar in the 20th Century. Not all of Posner's books and articles were about law and economics. In fact, most were not. Nor have his writings been predictable. If you had told us back in 1982 that Posner would later author a book titled The Failure of Capitalism, we might have stumbled into the Law School fountain.

Judge Posner has written over 3300 opinions. They, too, are capable of surprise. He has changed his mind more than once. His positions on controversial subjects such as voter identification requirements or gay marriage have somersaulted. At one time Posner was routinely lumped in as a judicial "conservative." That is not only simplistic, but largely wrong. The same Posner who, along with Aaron Director, Robert Bork, Frank Easterbrook, and others insisted that antitrust law be tethered to economic reality and consumer welfare, also clerked for Justice William Brennan, worked under Solicitor General Thurgood Marshall, and jousted fiercely with Justice Scalia over whether originalism was a correct mode of constitutional interpretation or a fool's errand. When the judge for whom we clerked, Ninth Circuit Judge William Norris, retired, he said that he would "reclaim [his] First Amendment rights." That is, Norris planned on speaking out on political issues in a way he felt he could not while he wore judicial robes. Posner has apparently never felt so constrained. He has written or spoken quite pointedly on political and economic issues over the last several years. Type "Posner" onto Youtube, sit back, and enjoy. He has picked fights. He has named names. Our cultural discourse has been much the better for it.

As you might expect, the best summary of Posner's method comes from Posner himself. In his retirement note, he emphasized his pride in taking a "pragmatic" approach to judging, in writing opinions that are easy to understand, and in focusing on issues of right and wrong in every case. Economic reality is one part of that pragmatic approach, but there is more. Posner paid at least as much attention to how parties act in the real world as to what judges had written regarding vaguely similar fact-scenarios in old, and sometimes not clearly thought-out, opinions. Posner's opinions were always clearly thought out, and, just as important, they were clearly expressed. The clarity of Posner's opinions is no accident. We know some people who clerked for Posner, and they confirm that Posner wrote every word of his opinions himself. While it must have been an enriching experience to have worked closely with the great man, we also get the sense that Posner's clerks had fewer responsibilities, almost reduced to the point of merely fetching him books, than other clerks. Based on Posner's criticisms of what he perceived as judicial over-reliance on clerks, that is not surprising.

We think that, like Judge Learned Hand, Posner will go down in history as being much more influential, and much more insightful, than all but a few Supreme Court Justices. As with Hand, it is a pity that Posner never ascended to our highest court. He was simply too smart, too intellectually adventurous, too prolific, and too damned clear. [Isn't there something supremely silly about the way we currently pick Supreme Court Justices? Instead of being a capstone to a long and distinguished legal career, positions on the Supreme Court are too often conferred on people who have a limited paper record, and whose birthdate promises a long term and maximum impact.] Then again, remember that Hand believed in judicial modesty, and cautioned against being ruled by judicial philosopher-kings. Posner's pragmatism and attention to what he believes are right and wrong outcomes arguably makes him one of those dreaded judicial philosopher-kings.

When we encountered criticisms of Posner over the years, they usually centered on his lack of respect for precedent and for lack of predictability. Posner seemed to delight in disposing of cases on jurisdictional grounds that none of the lawyers or the lower court had even considered. That can be frustrating for advocates. Worse, Posner could be cruel to lawyers who seemed insufficiently smart or conversant with relevant precedent — and most lawyers, in Posner's eyes, probably fell into that category. Posner himself once acknowledged his similarity to his beloved pet cat, listing cruelty as one of their common traits. Remember how we said that Posner's opinions could be flat-out weird? When Posner thought that a lawyer had been willfully blind to controlling precedent, he appended to his opinion a picture of an ostrich with its head in the sand.

Yesterday, we mentioned to one of our most trusted and admired colleagues that we were going to say a few words about Posner's retirement. He then told us a story that is so magnificently on point that we simply have to share it with you. Our friend and some other folks, all tremendously smart and diligent, devoted many days to preparing another lawyer for a Seventh Circuit oral argument. Posner was on the panel, so the preparation went the extra mile. When the very well-prepared lawyer approached the lectern, he didn't even finish clearing his throat before Posner's reedy voice cut in: wasn't the case at hand on all fours with the case of X v. Y? (The case had actual names, but they have been lost in the mists of time.) The preppers looked at each other in utter dismay. They had never discussed this case at all. They had never heard of it. What a failure! What an embarrassment! The poor fellow at the microphone admitted, as gracefully as he could, that he was unfamiliar with the case. Through a thin smile, Posner supplied the citation. The case was from the House of Lords, and was over a hundred years old. Was this gratuitous one-upmanship? Well, the case really was a perfect precedent, and it demonstrated why our friend's side should win. And so they did. Posner, as always, was the smartest guy in the room, and made sure to prove it. But a win's a win, so ....

In our own field of tort law, Posner's batting average was exceedingly high. We have almost always been dazzled by his opinions, whether on issues of statutes of limitations, forum non conveniens, plaintiff lawyer fees, off-label prescriptions, our beloved preemption, class certification (though we griped a couple of times when we thought he had gone soft on that issue), class action settlements, cy pres, and many, many other topics. It was Posner who penned our single favorite line about Daubert: "Law lags science; it does not lead it." Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996). It was Posner who best understood how post-Levine "clear evidence" preemption could eliminate failure to warn claims. Robinson v. McNeil Consumer Healthcare, 615 F.3d 861 (7th Cir. 2010). It was Posner who wrote eloquently about the danger of aggregated litigation prompting blackmail settlements. In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293, 1298-1300 (7th Cir. 1995). It was Posner's discussion of negligence versus strict liability in Indiana Harbor Belt R.R. Co. v. American Cyanimid Co., 916 F.2d 1174 (7th Cir. 1990), that has become one of those judicial chestnuts that turns up in virtually every casebook. Posner usually got it right, and in getting that rightness, his writing was compelling, crystalline, and often entertaining. Posner could even enliven discussion of standard of review, as when he wrote in the Nightingale Home Healthcare case that "it is an abuse of discretion not to exercise discretion."

At this point, it might be customary to bid a respectful adieu to Richard Posner, wistfully acknowledging how much we'll miss reading his opinions. But Posner's retirement announcement makes clear that we'll keep hearing from him. In the marketplace of ideas, Posner will continue to be one of our most active and valued participants. For that, we are profoundly grateful.

This article is presented for informational purposes only and is not intended to constitute legal advice.

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