Richard Posner

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Lore & Background

Richard Posner was born on January 11, 1939, in New York City to Blanche and Max Posner. His father's family were of Romanian Jewish descent, and his mother's family were Ashkenazi Jews from Galicia in the Austrian Empire. He studied English literature at Yale University, graduating in 1959 with a B.A., summa cum laude, and membership in Phi Beta Kappa. He then attended Harvard Law School, where he was president of the Harvard Law Review, graduating in 1962 ranked first in his class with an LL.B., magna cum laude. After law school, he clerked for Justice William J. Brennan Jr. of the U.S. Supreme Court from 1962 to 1963, then served as an attorney-advisor to Commissioner Philip Elman at the Federal Trade Commission, and later worked in the Office of the Solicitor General under Solicitor General Thurgood Marshall. In 1968, he accepted a position teaching at Stanford Law School, and in 1969 moved to the faculty of the University of Chicago Law School. He was a founding editor of The Journal of Legal Studies in 1972. On October 27, 1981, Posner was nominated by President Ronald Reagan to the Seventh Circuit, confirmed on November 24, 1981, and received his commission on December 1, 1981. He served as Chief Judge from 1993 to 2000 and retired from the federal bench on September 2, 2017, citing disputes with other judges over treatment of pro se litigants. Posner is the author of nearly 40 books, 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. He has written on topics including animal rights, feminism, drug prohibition, same-sex marriage, Keynesian economics, law and literature, and academic moral philosophy. Posner has generally been identified as politically conservative, but towards the end of his tenure he distanced himself from the Republican Party, authoring more liberal rulings involving same-sex marriage and abortion. In A Failure of Capitalism, he wrote that the 2008 financial crisis caused him to question the rational-choice, laissez-faire economic model at the heart of his law and economics theory.

Reader's Guide

Richard Posner's significance lies in his unparalleled influence on American legal thought, particularly through the law and economics movement. His 1973 book Economic Analysis of Law applied economic principles to legal questions. As a judge, he was known for a pragmatic approach: he stated, '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?' He added that Supreme Court precedents are 'often extremely easy to get around.' His judicial votes placed him on the moderate-to-liberal wing of the Republican Party, and he became more isolated over time. In July 2012, Posner stated, 'I've become less conservative since the Republican Party started becoming goofy.' Posner's legacy includes his vast body of writing, his role as a founding editor of The Journal of Legal Studies, and his joint blog with Nobel Prize-winning economist Gary Becker, titled 'The Becker-Posner Blog,' which ran from December 2004 until Becker's death in May 2014. He also had a blog at The Atlantic discussing the Great Recession. Posner was mentioned in 2005 as a potential nominee to replace Sandra Day O'Connor, but Robert S. Boynton wrote in The Washington Post that he believed Posner would never sit on the Supreme Court due to his occasionally 'outrageous conclusions,' such as his argument that buying and selling children on the free market would lead to better outcomes than government-regulated adoption, and his support for the legalization of marijuana and LSD. In November 2015, Posner authored a decision in Planned Parenthood of Wisconsin v. Schimel striking down regulations on abortion clinics, accusing the state of indirectly trying to ban abortions. Posner rejects an ethic of strong animal rights on pragmatic grounds, recognizing the philosophical force of such arguments but maintaining that human intuition about the paramount value of human life makes it impossible to accommodate them.

Did You Know?

• Posner was president of the Harvard Law Review and graduated first in his class in 1962.
• He clerked for Justice William J. Brennan Jr. of the U.S. Supreme Court from 1962 to 1963.
• Posner was a founding editor of The Journal of Legal Studies in 1972.
• He started a joint blog with Nobel Prize-winning economist Gary Becker in December 2004.
• Posner retired from the bench at age 78 instead of his planned 80 due to disputes with other judges over treatment of pro se litigants.