Posner, Richard A. 1939-

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Posner, Richard A. 1939-

PERSONAL:

Born January 11, 1939, in New York, NY; son of Max and Blanche Posner; married Charlene Ruth Horn (a freelance editor), August 13, 1962; children: Kenneth, Eric. Education: Yale University, A.B. (summa cum laude), 1959; Harvard University, LL.B. (magna cum laude), 1962.

ADDRESSES:

Office—University of Chicago Law School, 1111 E. 60th St., Chicago, IL 60637. E-mail—[email protected].

CAREER:

Called to the Bar of New York, 1963, and of the U.S. Supreme Court, 1996; law clerk to Supreme Court Justice William J. Brennan, Jr., Washington, DC, 1962-63; assistant to Federal Trade Commissioner Philip Elman, 1963-65; assistant to U.S. Solicitor General Thurgood Marshall, Washington, DC, 1965-67; general counsel of President Lyndon B. Johnson's Task Force on Communications Policy, Washington, DC, 1967-68; Stanford University Law School, Stanford, CA, associate professor of law, 1968-69; University of Chicago Law School, Chicago, IL, professor, 1969-78, Lee and Brena Freeman Professor of Law, 1978-81, senior lecturer, 1981—; U.S. Court of Appeals, Seventh Circuit, Chicago, circuit judge, 1981—, chief judge, 1993—. National Bureau of Economic Research, Cambridge, MA, research associate, 1971-81; Lexecon, Inc. (economic and legal consultants), cofounder and president, 1977-81; consultant to the Library of America.

MEMBER:

American Bar Association, American Economic Association, American Law and Economics Association (president, 1995-96), American Law Institute, Mont Pelerin Society, American Academy of Arts and Sciences (fellow), British Academy (corresponding fellow), Phi Beta Kappa.

AWARDS, HONORS:

LL.D., from Syracuse University, 1986, Duquesne University, 1987, Georgetown University, 1993, Yale University, 1996, University of Pennsylvania, 1997, and Northwestern University, 2001; Thomas Jefferson Memorial Foundation Award in Law, University of Virginia, 1994; Dr. Honoris Causa, University of Ghent, 1995; Marshall-Whythe Medallion, College of William and Mary, 1998; honorary president, Bentham Club of University College, London, 1998; J.D., Brooklyn Law School, 2000; fellow, College of Labor and Employment Lawyers; honorary Bencher of the Inner Temple.

WRITINGS:

Cable Television: The Problem of Local Monopoly, Rand Corporation (Santa Monica, CA), 1970.

Economic Analysis of Law, Little, Brown (Boston, MA), 1972, 7th edition, Aspen Publishers (New York, NY), 2007.

Regulation of Advertising by the FTC, American Enterprise Institute for Public Policy Research (Washington, DC), 1973.

Antitrust Cases, Economic Notes, and Other Materials, West Publishing (St. Paul, MN), 1974, 2nd edition, with Frank H. Easterbrook, West Publishing (St. Paul, MN), 1981.

(With Gerhard Casper) A Study of the Supreme Court's Caseload, American Bar Foundation (Chicago, IL), 1974.

The Social Costs of Monopoly and Regulation, University of Chicago Press (Chicago, IL), 1975.

Antitrust Law: An Economic Perspective, University of Chicago Press (Chicago, IL), 1976, 2nd edition, 2001.

(With Gerhard Casper) The Workload of the Supreme Court, American Bar Foundation (Chicago, IL), 1976.

The Robinson-Patman Act: Federal Regulation of Differences, American Enterprise Institute for Policy Research (Washington, DC), 1976.

(With John H. Langbein) Market Funds and Trust-Investment Law, II, American Bar Foundation (Chicago, IL), 1977.

(With Anthony T. Kronman) The Economics of Contract Law, Little, Brown (Boston, MA), 1979.

(Editor, with Kenneth E. Scott) Economics of Corporation Law and Securities Regulation, Little, Brown (Boston, MA), 1981.

Cases and Economic Notes on Antitrust, 2nd edition, West Publishing (St. Paul, MN), 1981.

The Economics of Justice, Harvard University Press (Cambridge, MA), 1981.

(With Frank H. Easterbrook) 1982-83 Supplement to Antitrust Cases, Economic Notes, and Other Materials, West Publishing (St. Paul, MN), 1982.

Tort Law: Cases and Economic Analysis, Little, Brown (Boston, MA), 1982.

The Federal Courts: Crisis and Reform, Harvard University Press (Cambridge, MA), 1985.

(With William M. Landes) The Economic Structure of Tort Law, Harvard University Press (Cambridge, MA), 1987.

Law and Literature: A Misunderstood Relation, Harvard University Press (Cambridge, MA), 1988.

The Problems of Jurisprudence, Harvard University Press (Cambridge, MA), 1990.

Cardozo: A Study in Reputation, University of Chicago Press (Chicago, IL), 1990.

A Theory of Sexuality, Harvard University Press (Cambridge, MA), 1992.

(Editor and author of introduction) The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr., University of Chicago Press (Chicago, IL), 1992.

Sex and Reason, Harvard University Press (Cambridge, MA), 1992.

(With Thomas J. Philipson) Private Choices and Public Health: The AIDS Epidemic in an Economic Perspective, Harvard University Press (Cambridge, MA), 1993.

Economics, Time, and Age, 25th Geary Lecture, Economic and Social Research Institute (Dublin, Ireland), 1994.

Aging and Old Age, University of Chicago Press (Chicago, IL), 1995.

Overcoming Law, Harvard University Press (Cambridge, MA), 1995.

Law and Legal Theory in England and America, Clarendon Press (New York, NY), 1996.

(With Katharine B. Silbaugh) A Guide to America's Sex Laws, University of Chicago Press (Chicago, IL), 1996.

(Editor, with Francesco Parisi) Law and Economics, Edward Elgar Publishing (Lyme, NH), 1997.

Natural Monopoly and Its Regulation, Cato Institute (Washington, DC), 1999.

The Problematics of Moral and Legal Theory, Belknap Press of Harvard University (Cambridge, MA), 1999.

An Affair of State: The Investigation, Impeachment, and Trial of President Clinton, Harvard University Press (Cambridge, MA), 1999.

The Economic Structure of the Law, edited by Francesco Parisi, Edward Elgar Publishing (Northampton, MA), 2000.

Frontiers of Legal Theory, Harvard University Press (Cambridge, MA), 2001.

Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts, Princeton University Press (Princeton, NJ), 2001.

Public Intellectuals: A Study of Decline, Harvard University Press (Cambridge, MA), 2001, revised edition, 2003.

Law, Pragmatism and Democracy, Harvard University Press (Cambridge, MA), 2003.

(With William M. Landes) The Economic Structure of Intellectual Property Law, Harvard University Press (Cambridge, MA), 2003.

Catastrophe: Risk and Response, Oxford University Press (New York, NY), 2004.

(With William M. Landes) The Political Economy of Intellectual Property Law, AEI-Brookings Joint Center for Regulatory Studies (Washington, DC), 2004.

Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (Hoover Institution, Stanford University), Rowman & Littlefield (Lanham, MD), 2005.

Remaking Domestic Intelligence, Hoover Institution Press (Stanford, CA), 2005.

Not a Suicide Pact: The Constitution in a Time of National Emergency, Oxford University Press (New York, NY), 2006.

Uncertain Shield: The U.S. Intelligence System in the Throes of Reform, Rowman & Littlefield (Lanham, MD), 2006.

The Little Book of Plagiarism, Pantheon Books (New York, NY), 2007.

Contributor to law journals. Harvard Law Review, former president; Journal of Legal Studies, founder.

SIDELIGHTS:

Federal appeals court judge Richard A. Posner is a prolific author on subjects as diverse as literary criticism, sex and sexuality, economics and the law, and age and aging. Posner unabashedly expresses his well-informed perspectives, as evidenced in An Affair of State: The Investigation, Impeachment, and Trial of President Clinton, a book in which he concludes that the president had committed perjury and obstruction of justice."

Posner was born in New York City and reared in its suburbs. The honor student, who graduated first in his class at Harvard Law School and was the president of the Harvard Law Review, began his career in Washington, DC, in several different governmental capacities. He started teaching law at Stanford University and later became professor of law at the University of Chicago. During this time, Posner wrote several books on economics and the law, covering antitrust, public utility and common carrier regulation, torts, and contracts. In fact, he is known as one of the founders of the "law-and-economics movement" of the 1970s. He introduced economic analysis of the law into areas such as family law, racial discrimination, and jurisprudence and privacy. As an indication of his standing, Posner was appointed as mediator in all settlement talks between Microsoft and the U.S. antitrust authorities during their legal battle.

In keeping with Posner's wide array of interests and knowledge, his An Affair of State moves on to an entirely different topic: President Bill Clinton's sex scandal, perjury, and impeachment trial. Posner "has long been interested in the relationship between sex and legal and moral theory," wrote Andrew Sullivan in the New York Times. "He is a grown-up and thinking conservative, so in many ways he is a perfect man for the task, and this book doesn't disappoint. Posner makes you recall all over again why 1998 and the first six weeks of 1999 were such a riveting time, and how those months dramatized our culture's deepest political and moral disagreements and, in some strange fashion, helped restore them. But his most valuable contribution is legal. In a way only good judges can do, he manages both to portray the ambiguity of constitutional law … and yet not shy from judgment about what actually happened and what to make of it."

With Public Intellectuals: A Study of Decline, Posner turns his attention to the role of the academic media superstars, or the "public intellectuals." In his review of the book for Washington Monthly, Jamie Malanowski defined this group of writers as "the big-brained types who have some academic background or relationship and who discourse on matters of public interest." Malanowski noted that Posner believes modern public intellectuals contribute inferior commentary in comparison to the early "giants" such as George Orwell, Albert Camus, and John Stuart Mill. He believes there are several reasons for the "decline." One is academic specialization, which limits the number of disciplines studied by the intellectual community and handicaps those who step out of their area of expertise in their social and political writings targeted to the general public. He also blames a market that lacks quality control—an audience (themselves often specialists) that lacks the knowledge to evaluate what has been written, and a peer group that seldom monitors the work of its members. In other words, noted Carol Polsgrove in her review of the book for American Prospect, "freed from knowledgeable scrutiny, intellectuals can pretty much say what they want and get away with it."

In an interview with Larissa MacFarquam for the New Yorker, Posner said: "I have exactly the same personality as my cat. I am cold, furtive, callous, snobbish, selfish, and playful, but with a streak of cruelty." Referring to this comment, Malanowski wrote: "Knowing the man to be both brilliant and mean—playful with a streak of cruelty—it seems to me quite possible that Public Intellectuals is merely a massive 398-page, chart-filled practical joke perpetrated upon a vain intelligentsia and credulous media, all for the perverse, cat-stroking amusement of Richard Posner." Other reviewers, too, wondered at Posner's intent with this book. Regardless, Samuel Brittan, reviewer with the Financial Times, commented: "The sad thing is that this book will most likely be read by people who already agree with the message … rather than those who would benefit most, but who are more likely to read the attempted rebuttals which have already been proliferating in the U.S."

Following her interview with Posner, MacFarquam made this comment: "It is not apparent from his mild exterior that Posner is the most mercilessly seditious legal theorist of this generation. Nor is it obvious that, as a judge on the Seventh Circuit Court of Appeals, he is one of the most powerful jurists in the country, second only to those on the Supreme Court… Posner did not set out to seize power: he spotted it drifting and gleefully pocketed it, like a stray hundred-dollar bill." She remarked that Posner is "aggressively unconventional in his judging [and] ten times as much so in his books." She also commented: "He is not the type to spend years testing his arguments for leakage, sealing tiny cracks and worrying endlessly over possible ripostes: he would rather risk sending them young into the world, flawed but forceful, with the advantage of surprise. And yet the uproarious pugilism and the desire to shock evident in his pages are nowhere visible on the surface of the man."

Steve Kurtz commented after interviewing Posner for Reason Online: "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."

Frontiers of Legal Theory is Posner's examination of the law and other disciplines, including economics, history, statistics, and psychology, and an assessment of whether they enhance the legal system. His greatest emphasis is on the law and economics theory. In Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts, he defends the 2000 U.S. Supreme Court decision in Bush v. Gore that denied a recount and writes that the Court acted reasonably, if not in accordance with state law and the Constitution.

Posner reaches far and wide in Catastrophe: Risk and Response, noting the numerous threats to our lives and security that include asteroids, global warming, nuclear weapons, superbugs, and the overthrow of humanity by intelligent machines. He calls for "catastrophic risk reviews" conducted by cooperating scientists, economists, and leaders. He feels that, just as all airline passengers are treated as possible terrorists, scientists must all be closely watched, even if it means slowing the advance of science. In reviewing Catastrophe in the Harvard Law Review, a contributor wrote that the book "skillfully utilizes and checks works by other commentators to advance an informed debate over how to grapple with some of the more frightening challenges of a young century. Properly reforming diverse legal institutions to act on these concerns, however, will require a more thorough analysis of why existing frameworks fail to meet the challenges posed by catastrophic risks and how suggested reforms will play out against the larger background of law and policy. Legal scholars should not hesitate to make such contributions; the future of mankind may hang in the balance."

In Not a Suicide Pact: The Constitution in a Time of National Emergency, Posner clearly favors greater executive power in responding to terrorism and feels the courts should more strongly rule in favor of national security than has otherwise been the case during the last several decades. "Posner is far more provocative and surprising when he reveals the limits of his trust," wrote Emily Bazelon in the New York Times Book Review. "What government powers does he think should be curtailed under the Constitution? As it turns out, he wants to hold on to quite a lot of the status quo." Posner feels the use of torture is sometimes necessary, but also contends that it should not be legalized. He writes that in that way, the government "will be reluctant to act unless a powerful moral justification, overriding the infamy of a legal violation, can be advanced." He sees such action as a form of civil disobedience: "While the term is usually applied to private individuals who deem it their moral duty to disobey positive law, there is no reason why it cannot also be used of public officials who do the same thing." Posner is also not against the suspension of habeas corpus by the president, a right reserved for congress, and notes that President Lincoln did so during the Civil War. Bazelon pointed to the fact that Lincoln acted while congress was in recess and asked for approval when it returned. Vernon Ford concluded in Booklist: "Civil libertarians may take issue, but readers on all sides will appreciate Posner's outspokenness."

Posner defends the "borrowing" of other people's words in The Little Book of Plagiarism, noting that this act has been practiced by the likes of William Shakespeare, Martin Luther King, Jr., and Vladimir Putin. He makes distinctions between plagiarism and copyright infringement, noting that the latter is more serious, as it is the use of the work of another in order to benefit financially. Posner includes recent examples of contemporary writers who have been accused of plagiarism, including Dan Brown, J.K. Rowling, Stephen Ambrose, Alan Dershowitz, Laurence Tribe, and Doris Kearns Goodwin. Posner writes that punishment for plagiarism can include dismissal of a student, but that other than in the academic world, it usually consists of humiliation and disgrace. Gilbert Taylor concluded in Booklist: "Pleading for cool thought about plagiarism, Posner's analysis will enlighten all who work with words."

BIOGRAPHICAL AND CRITICAL SOURCES:

PERIODICALS

American Prospect, February 11, 2002, Carol Polsgrove, review of Public Intellectuals: A Study of Decline, p. 42.

American Quarterly, September, 1992, review of Law and Literature: A Misunderstood Relation, p. 494.

Archives of Sexual Behavior, June, 2000, Kenneth J. Zucker, review of A Guide to America's Sex Laws, p. 300.

Atlantic, April, 2002, review of The Little Book of Plagiarism.

Booklist, October 1, 2006, Vernon Ford, review of Not a Suicide Pact: The Constitution in a Time of National Emergency, p. 9; December 15, 2006, Gilbert Taylor, review of The Little Book of Plagiarism, p. 8.

Bookworld, July 5, 1992, review of Sex and Reason, p. 6; November 3, 1996, review of A Guide to America's Sex Laws, p. 13.

Civil Rights Journal, fall, 1997, Kermit L. Hall, review of Overcoming Law, p. 55.

Columbia Law Review, October, 1995, review of Overcoming Law, p. 1568.

Commentary, February, 1996, Marc M. Arkin, review of Aging and Old Age, p. 56.

Commonweal, July 14, 1995, Daniel J. Morrissey, review of Overcoming Law, p. 24.

Constitutional Commentary, winter, 1999, Daniel A. Farber, review of The Problematics of Moral and Legal Theory, pp. 675-690.

Economist, September 18, 1999, review of The Problematics of Moral and Legal Theory, p. 7; June 21, 2003, review of Law, Pragmatism and Democracy, p. 78.

Ethics, April, 1995, review of Sex and Reason, p. 670; April, 1998, review of Aging and Old Age, p. 569.

Financial Times, February 2, 2002, Samuel Brittan, review of Public Intellectuals, p. 6.

First Things, August, 1999, David M. Smolin, review of The Problematics of Moral and Legal Theory, p. 56; December, 2001, Robert T. Miller, review of Frontiers of Legal Theory, p. 54.

Harvard Law Review, February, 2005, review of Catastrophe, pp. 1339-1346.

Issues in Science and Technology, summer, 2005, Baruch Fischhoff, review of Catastrophe, p. 82.

Journal of Forensic Economics, spring-summer, 1999, Thomas R. Ireland, review of Aging and Old Age, p. 153.

Journal of Interdisciplinary History, winter, 1992, review of Cardozo: A Study in Reputation, p. 547.

Law Quarterly Review, July, 1998, review of Law and Legal Theory in England and America, p. 511.

Library Journal, April 1, 2001, Philip Y. Blue, review of Frontiers of Legal Theory, p. 116; September 1, 2001, Steven Puro, review of Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts, p. 208; June 15, 2005, Steven Puro, review of Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11, p. 85; September 1, 2006, Steven Puro, review of Not a Suicide Pact, p. 162.

Michigan Law Review, May, 1993, Martin Zelder, review of Sex and Reason, pp. 1584-1608; May, 1996, Gerard V. Bradley, review of Overcoming Law, pp. 1898-1926.

National Journal, September 8, 2001, David G. Savage, review of Breaking the Deadlock, p. 2764.

New Jersey Law Journal, November 8, 2004, John Schwartz, review of Catastrophe: Risk and Response, p. 73.

New Leader, September, 2001, Marvin E. Frankel, review of Breaking the Deadlock, p. 15.

New Republic, August 23, 1999, review of The Problematics of Moral and Legal Theory, p. 38.

New Yorker, December 10, 2001, Larissa MacFarquam, "The Bench Burner: An Interview with Richard Posner."

New York Times, September 26, 1999, Andrew Sullivan, review of An Affair of State: The Investigation, Impeachment, and Trial of President Clinton.

New York Times Book Review, April, 1996, review of Aging and Old Age, p. 26; September 26, 1999, review of An Affair of State, p. 13; September 10, 2006, Emily Bazelon, review of Not a Suicide Pact, p. 29.

Perspectives on Political Science, winter, 1992, review of Cardozo, p. 42.

Political Science Quarterly, fall, 1994, Ronald Bauer, review of Private Choices and Public Health: The AIDS Epidemic in an Economic Perspective, p. 734; summer, 2002, Rogers M. Smith, review of Frontiers of Legal Theory, p. 345.

Population and Development Review, June, 1996, Mark Perlman, review of Aging and Old Age, p. 365.

Presidential Studies Quarterly, March, 2003, Matthew J. Franck, review of Breaking the Deadlock, p. 238.

Public Interest, summer, 1995, Jay P. Lefkowitz, review of Overcoming Law, p. 100.

Publishers Weekly, May 28, 2001, review of Frontiers of Legal Theory, p. 72; July 30, 2001, review of Breaking the Deadlock, p. 69; October 18, 2004, review of Catastrophe, p. 57; July 24, 2006, review of Not a Suicide Pact, p. 48; November 27, 2006, review of The Little Book of Plagiarism, p. 43.

Recorder, December 8, 2006, Dan Levine, review of The Little Book of Plagiarism.

Social Education, November-December, 2006, James Landman, "The Constitution in a Time of National Emergency: An Interview with Judge Richard Posner," p. 442.

Society, May-June, 1997, Lewis A. Coser, review of Aging and Old Age, p. 90.

Stanford Law Review, May, 2002, John Mikhail, review of The Problematics of Moral and Legal Theory, p. 1057.

Theological Studies, March, 2000, Robert John Araujo, review of The Problematics of Moral and Legal Theory, p. 181.

Times Literary Supplement, May 8, 1998, review of Law and Literature, November 19, 1999, review of An Affair of State, p. 8.

Tribune Books, April 11, 1993, review of The Problems of Jurisprudence, p. 8.

Village Voice, May 25, 1993, review of Sex and Reason, p. 81.

Wall Street Journal, September 14, 1999, review of An Affair of State, p. A20.

Yale Law Journal, November, 1995, Jeffrey Rosen, review of Overcoming Law, pp. 581-610; December, 2003, Michael Sullivan and Daniel J. Solove, review of Law, Pragmatism and Democracy, p. 687.