6 ms·

The Mystery of Richard Posner

110 points by oli5679 4y ago

Brigand 4y ago
It seems like intellectuals of his integrity are leaving this world one after the other. Instead of keeping their legacy in high esteem, the ideas they refuted so vehemently are what is popular with the young generation.
- deleted 4y ago
  [deleted]
- Q6T46nT668w6i3m 4y ago
  “Integrity” is a great description of Richard Posner’s writing but I’d, politely, claim “vehemently” is a bad description! Posner, to his credit, frequently refutes his past writings! A trademark of his writing is his weariness about immutable philosophy.
- dredmorbius 4y ago
  Intellectual status is recognised slowly and belatedly. See for example Nobel prize awards, which frequently come late in life. New talents are recongised only slowly over time. I've lived long enough to have had the experience of seeing people I'd noted long before gain wider appreciation, as well as seeing new faces appear out of the blue. There's also of course the reverse: formerly esteemed individuals falling from grace, with Alex Kozinski being one such example in the legal field. Among the first appearances of Richard Posner at the New York Times is a mention in this 1978 article: <https://www.nytimes.com/1978/06/18/archives/regulation-do-its-costs-outweigh-its-benefits.html https://www.nytimes.com/1978/06/18/archives/regulation-do-it...> Would it be clear from it that one is dealing with a budding giant in the legal field? (There's an earlier match on the name, though I'm not sure that it refers to the same Richard Posner, though on reflection I suspect it is: <https://www.nytimes.com/1972/04/30/archives/the-closed-enterprise-system-ralph-naders-study-group-report-on.html?searchResultPosition=1 https://www.nytimes.com/1972/04/30/archives/the-closed-enter...> (1972).) Full search results, oldest first: <https://www.nytimes.com/search?dropmab=false&query=%22richard%20posner%22&sort=oldest https://www.nytimes.com/search?dropmab=false&query=%22richar...>
A_D_E_P_T 4y ago
The question posed by the article, and reviewed therein -- namely, "what did Posner really think of the law?" -- is comprehensively answered in Posner's own book "The Problems of Jurisprudence." It is an excellent and sadly overlooked work, which contains fascinating comparisons between natural law and positive law. The article makes Posner's support of pro se litigants in his final years seem crazy and haphazard, like a side-effect of his Alzheimer's diagnosis. And maybe it was, but Posner's heart was in the right place: Pro se litigants are taken advantage of by the legal system and have the deck stacked against them. Bigtime. In civil cases, even most middle class people can't afford to hire lawyers, and are forced to knuckle under and settle, or fight and probably lose. This gives people the impression that "justice" can be bought, and it's not necessarily a wrong impression. Posner was responding, in a way, to a great and longstanding injustice.
- oli5679 4y ago
  This is such an interesting topic. My ideal legal system would be easy for people to represent themselves, but expensive for people to bring forward frivolous cases. I wonder how both can be achieved at the same time?
  - A_D_E_P_T 4y ago
    Alright, so getting a legal education isn't easy. Admittance to the bar takes years, and the test is non-trivial. (You can't just waltz in with a high IQ and expect to pass without serious study. You can't bullshit your way past it.) Still, everybody's familiar with the stereotype of the scatterbrained and incompetent public defender... Now, take that stereotype and raise it by a couple orders of magnitude and you've got the average pro se litigant. It's almost impossible to "skip past" those years of study and practice, and just litigate your own case as though you were a lawyer. Most pro se litigants have literally no clue what they're doing, and they often end up relying on coaching from the judge (which raises fairness issues) and from the opposing lawyer (which raises ethics issues) -- it almost never ends well. Yet legal services, especially for defendants who are trying to protect themselves from unfair or frivolous accusations in civil court, are so often priced out of reach. So defenses are difficult and sometimes impossible to raise, and there are more than a few law firms who act as though they were mob enforcers. There are two solutions which have been proposed: 1. In most small claims courts, both sides are prohibited from using lawyers, and legal proceedings are simplified and rooted more in common sense than established precedent. This practice could be extended to higher-value civil cases. 2. Establish a "right to representation" in all cases -- civil as well as criminal -- with public access to government-funded legal assistance. It has been argued that this might even save the government money, as pro se litigants are a severe drain on judicial resources, and this practice might weed out frivolous cases before they're even filed. But, hell, the way things are going, legal services and even judges might soon become AI models, so who knows? As for making frivolous cases expensive to bring forward: I think that judges should be quicker to sanction people (and corporations!) and label them "vexatious litigants," which would place limits on their ability to bring forward subsequent civil cases. That aside, I don't think that the pricetag of _anything_ associated with the legal system needs to be raised. BTW: I am not a lawyer but have a philosophical interest in the theory and practice of law. There are lawyers here who surely know a lot more than I do.
tomohawk 4y ago
This is why there should be term limits on judges and legislators.
- dredmorbius 4y ago
  "This" referring to Posner's Alzheimers diagnosis six months after retirement? <https://www.reuters.com/legal/litigation/after-posner-retired-7th-circuit-grim-diagnosis-brewing-battle-2022-03-29/ https://www.reuters.com/legal/litigation/after-posner-retire...> As the Reuters article notes, Posner himself called for mandatory judicial retirement at age 80.
  - Kon-Peki 4y ago
    The federal judiciary has a sort-of mandatory retirement [1]. After age 65, you fall out of the random case assignment pool and can only be appointed to a case for special reasons, such as case overload or special prosecutions. Most judges cannot handle this change to relative obscurity and irrelevance, and fully retire. Only the most dedicated continue. [1] https://www.uscourts.gov/faqs-federal-judges#faq-What-is-a-senior-judge https://www.uscourts.gov/faqs-federal-judges#faq-What-is-a-s...? > Senior judges, who essentially provide volunteer service to the courts, typically handle about 15 percent of the federal courts' workload annually.
Scubabear68 4y ago
I am not a lawyer, but I have dove into several legal issues as an active participant a few times and done a lot of research. I have also talked to a lot of lawyers on several issues over the years. I get a strong impression that law school can be a bit like computer science, in that you are taught theory but not as much the practice. I don’t want to stretch the analogy too far, but every area of law in the US, and indeed every jurisdiction, seems to have its own rules. I’m sure law school gives you a foundation, but really effective lawyers seem to know their jurisdictions and it’s rules and the major players. As a sort of anecdotal counter example of that. I saw a big time DC law firm come into a local NJ court and get its ass handed to them by the judge for not knowing local law. Having dealt with NY surrogate court and an NJ agency on a complaint, I can also attest that you need to know the magical incantations for each individually (and they are arbitrary at the whim of the court).
- bradleyjg 4y ago
  It’s even less practical than computer science because the theory they teach is only relevant to law professors. It has absolutely no connection to what lawyers do day to day. Big O, database normal forms, etc. at least have some connection. The first year of law school is somewhat useful to teach the shibboleths. Beyond that it’s pure rent seeking by the ever rapacious BigEd.
huitzitziltzin 4y ago
Counting only half of his contributions to law and economics would be more than enough of a legacy
TheMagicHorsey 4y ago
Posner is a giant. So is Richard Epstein. They both have some old fashioned views and blind spots, but roughly speaking, I feel their take on how to structure legal systems is correct.
skymer 4y ago
A British judge named Alfred Denning was Posner's spiritual predecessor in the last century. Unlike Posner, Denning made it to Britain's supreme court. In law school, student's were warned early that while Denning's opinions were regularly published in casebooks because they clearly illuminated the law, he was often on the wrong side of the result.
tz18 4y ago
Context on the author: he is Internet Policy Counsel at TechFreedom, a think-tank which opposes net neutrality. I feel this is relevant because as the article goes on it feels more and more slanted, like a ship listing into libertarian seas.
- jonstewart 4y ago
  Agree, the article becomes progressively weirder and harsher, without making much of an argument.
- angry_octet 4y ago
  The sound of axe grinding is evident from the outset. Just another indication of how deeply unsettled establishment figures were by Posner.
jonstewart 4y ago
I haven't read enough by Posner to develop a clear opinion; I'm pretty liberal and deeply skeptical of anyone/anything closely associated with the University of Chicago. However, Posner's evisceration of Malcolm Gladwell's Blink is masterful and I re-read it every couple years for sheer joy: https://newrepublic.com/article/68000/blinkered https://newrepublic.com/article/68000/blinkered
- neonate 4y ago
  http://web.archive.org/web/20221213040420/https://newrepublic.com/article/68000/blinkered http://web.archive.org/web/20221213040420/https://newrepubli...
pierrebai 4y ago
Reading about his thoughts and opinions, it really makes it seems as if Posner only cared about his own opinion about matters, and not the actual laws. > As for text, Posner had little compunction about slipping around it. He took a dim view of laws and legislatures. Statutes, he believed, are generally indeterminate, contradictory, and even counterproductive. They’re “written in haste by busy people who often are neither able nor conscientious.”

110 points by oli5679 4y ago

It seems like intellectuals of his integrity are leaving this world one after the other. Instead of keeping their legacy in high esteem, the ideas they refuted so vehemently are what is popular with the young generation.

deleted 4y ago
[deleted]
Q6T46nT668w6i3m 4y ago
“Integrity” is a great description of Richard Posner’s writing but I’d, politely, claim “vehemently” is a bad description! Posner, to his credit, frequently refutes his past writings! A trademark of his writing is his weariness about immutable philosophy.
dredmorbius 4y ago
Intellectual status is recognised slowly and belatedly. See for example Nobel prize awards, which frequently come late in life. New talents are recongised only slowly over time. I've lived long enough to have had the experience of seeing people I'd noted long before gain wider appreciation, as well as seeing new faces appear out of the blue. There's also of course the reverse: formerly esteemed individuals falling from grace, with Alex Kozinski being one such example in the legal field. Among the first appearances of Richard Posner at the New York Times is a mention in this 1978 article: <https://www.nytimes.com/1978/06/18/archives/regulation-do-its-costs-outweigh-its-benefits.html https://www.nytimes.com/1978/06/18/archives/regulation-do-it...> Would it be clear from it that one is dealing with a budding giant in the legal field? (There's an earlier match on the name, though I'm not sure that it refers to the same Richard Posner, though on reflection I suspect it is: <https://www.nytimes.com/1972/04/30/archives/the-closed-enterprise-system-ralph-naders-study-group-report-on.html?searchResultPosition=1 https://www.nytimes.com/1972/04/30/archives/the-closed-enter...> (1972).) Full search results, oldest first: <https://www.nytimes.com/search?dropmab=false&query=%22richard%20posner%22&sort=oldest https://www.nytimes.com/search?dropmab=false&query=%22richar...>

A_D_E_P_T 4y ago

The question posed by the article, and reviewed therein -- namely, "what did Posner really think of the law?" -- is comprehensively answered in Posner's own book "The Problems of Jurisprudence." It is an excellent and sadly overlooked work, which contains fascinating comparisons between natural law and positive law. The article makes Posner's support of pro se litigants in his final years seem crazy and haphazard, like a side-effect of his Alzheimer's diagnosis. And maybe it was, but Posner's heart was in the right place: Pro se litigants are taken advantage of by the legal system and have the deck stacked against them. Bigtime. In civil cases, even most middle class people can't afford to hire lawyers, and are forced to knuckle under and settle, or fight and probably lose. This gives people the impression that "justice" can be bought, and it's not necessarily a wrong impression. Posner was responding, in a way, to a great and longstanding injustice.

oli5679 4y ago
This is such an interesting topic. My ideal legal system would be easy for people to represent themselves, but expensive for people to bring forward frivolous cases. I wonder how both can be achieved at the same time?
- A_D_E_P_T 4y ago
  Alright, so getting a legal education isn't easy. Admittance to the bar takes years, and the test is non-trivial. (You can't just waltz in with a high IQ and expect to pass without serious study. You can't bullshit your way past it.) Still, everybody's familiar with the stereotype of the scatterbrained and incompetent public defender... Now, take that stereotype and raise it by a couple orders of magnitude and you've got the average pro se litigant. It's almost impossible to "skip past" those years of study and practice, and just litigate your own case as though you were a lawyer. Most pro se litigants have literally no clue what they're doing, and they often end up relying on coaching from the judge (which raises fairness issues) and from the opposing lawyer (which raises ethics issues) -- it almost never ends well. Yet legal services, especially for defendants who are trying to protect themselves from unfair or frivolous accusations in civil court, are so often priced out of reach. So defenses are difficult and sometimes impossible to raise, and there are more than a few law firms who act as though they were mob enforcers. There are two solutions which have been proposed: 1. In most small claims courts, both sides are prohibited from using lawyers, and legal proceedings are simplified and rooted more in common sense than established precedent. This practice could be extended to higher-value civil cases. 2. Establish a "right to representation" in all cases -- civil as well as criminal -- with public access to government-funded legal assistance. It has been argued that this might even save the government money, as pro se litigants are a severe drain on judicial resources, and this practice might weed out frivolous cases before they're even filed. But, hell, the way things are going, legal services and even judges might soon become AI models, so who knows? As for making frivolous cases expensive to bring forward: I think that judges should be quicker to sanction people (and corporations!) and label them "vexatious litigants," which would place limits on their ability to bring forward subsequent civil cases. That aside, I don't think that the pricetag of _anything_ associated with the legal system needs to be raised. BTW: I am not a lawyer but have a philosophical interest in the theory and practice of law. There are lawyers here who surely know a lot more than I do.

tomohawk 4y ago

This is why there should be term limits on judges and legislators.

dredmorbius 4y ago
"This" referring to Posner's Alzheimers diagnosis six months after retirement? <https://www.reuters.com/legal/litigation/after-posner-retired-7th-circuit-grim-diagnosis-brewing-battle-2022-03-29/ https://www.reuters.com/legal/litigation/after-posner-retire...> As the Reuters article notes, Posner himself called for mandatory judicial retirement at age 80.
- Kon-Peki 4y ago
  The federal judiciary has a sort-of mandatory retirement [1]. After age 65, you fall out of the random case assignment pool and can only be appointed to a case for special reasons, such as case overload or special prosecutions. Most judges cannot handle this change to relative obscurity and irrelevance, and fully retire. Only the most dedicated continue. [1] https://www.uscourts.gov/faqs-federal-judges#faq-What-is-a-senior-judge https://www.uscourts.gov/faqs-federal-judges#faq-What-is-a-s...? > Senior judges, who essentially provide volunteer service to the courts, typically handle about 15 percent of the federal courts' workload annually.

Scubabear68 4y ago

I am not a lawyer, but I have dove into several legal issues as an active participant a few times and done a lot of research. I have also talked to a lot of lawyers on several issues over the years. I get a strong impression that law school can be a bit like computer science, in that you are taught theory but not as much the practice. I don’t want to stretch the analogy too far, but every area of law in the US, and indeed every jurisdiction, seems to have its own rules. I’m sure law school gives you a foundation, but really effective lawyers seem to know their jurisdictions and it’s rules and the major players. As a sort of anecdotal counter example of that. I saw a big time DC law firm come into a local NJ court and get its ass handed to them by the judge for not knowing local law. Having dealt with NY surrogate court and an NJ agency on a complaint, I can also attest that you need to know the magical incantations for each individually (and they are arbitrary at the whim of the court).

bradleyjg 4y ago
It’s even less practical than computer science because the theory they teach is only relevant to law professors. It has absolutely no connection to what lawyers do day to day. Big O, database normal forms, etc. at least have some connection. The first year of law school is somewhat useful to teach the shibboleths. Beyond that it’s pure rent seeking by the ever rapacious BigEd.

huitzitziltzin 4y ago

Counting only half of his contributions to law and economics would be more than enough of a legacy

TheMagicHorsey 4y ago

Posner is a giant. So is Richard Epstein. They both have some old fashioned views and blind spots, but roughly speaking, I feel their take on how to structure legal systems is correct.

skymer 4y ago

A British judge named Alfred Denning was Posner's spiritual predecessor in the last century. Unlike Posner, Denning made it to Britain's supreme court. In law school, student's were warned early that while Denning's opinions were regularly published in casebooks because they clearly illuminated the law, he was often on the wrong side of the result.

tz18 4y ago

Context on the author: he is Internet Policy Counsel at TechFreedom, a think-tank which opposes net neutrality. I feel this is relevant because as the article goes on it feels more and more slanted, like a ship listing into libertarian seas.

jonstewart 4y ago
Agree, the article becomes progressively weirder and harsher, without making much of an argument.
angry_octet 4y ago
The sound of axe grinding is evident from the outset. Just another indication of how deeply unsettled establishment figures were by Posner.

jonstewart 4y ago

I haven't read enough by Posner to develop a clear opinion; I'm pretty liberal and deeply skeptical of anyone/anything closely associated with the University of Chicago. However, Posner's evisceration of Malcolm Gladwell's Blink is masterful and I re-read it every couple years for sheer joy: https://newrepublic.com/article/68000/blinkered https://newrepublic.com/article/68000/blinkered

neonate 4y ago
http://web.archive.org/web/20221213040420/https://newrepublic.com/article/68000/blinkered http://web.archive.org/web/20221213040420/https://newrepubli...

pierrebai 4y ago

Reading about his thoughts and opinions, it really makes it seems as if Posner only cared about his own opinion about matters, and not the actual laws. > As for text, Posner had little compunction about slipping around it. He took a dim view of laws and legislatures. Statutes, he believed, are generally indeterminate, contradictory, and even counterproductive. They’re “written in haste by busy people who often are neither able nor conscientious.”