On Posner

Richard Posner has always been a polarizing intellectual. But I must admit, I'm still extremely conflicted about Posner.

On the one hand, he literally wrote the book on Law & Economics. He has long served as the unofficial leader of the so-called Law & Economics movement—a field which bothers me to no end, and with which I'm immensely disappointed. He has written countless "law and economics of ____" law review articles, many of which can only be described as pseudo-economics. These articles basically amount to a quick-and-dirty application of the most simplistic neoclassical economic model to different areas of law. As a result, they're extremely misleading, both about the proper economic analysis of those areas of law, and about the nature of economics.

On the other hand, he occasionally churns out a brilliant and thoughtful work. His new book, How Judges Think, is just such a work. In contrast to his more grating pronouncements about the dominance of Law & Economics, his tone in How Judges Think is measured, and his analysis is rigorous. He doesn't make any sweeping claims about how judges think. Instead, he examines in great detail the competing theories of how judges think, evaluates the (somewhat limited) empirical evidence, and notes that each theory's explanatory power is highly context-specific. It's not for the faint-of-heart, but it's a richly rewarding book in the end.

Which brings me back to his role in the Law & Economics movement. Don't get me wrong, law students desperately need to be introduced to economic concepts, and Law & Economics has vastly improved the quality of the legal academy. As I've noted before, when I went to law school, I was absolutely stunned by my first-year classmates' lack of basic economic knowledge. But instead of teaching the basic neoclassical model as the building block of economics, to be refined and adjusted (sometimes dramatically) based on the specific context, Law & Economics tends to teach the basic neoclassical model as the final product of economics. Undergraduate economics classes are usually fraught with warnings about the limitations of the basic neoclassical model (or at least they're supposed to be). Those warnings are virtually non-existent in the Law & Economics literature. As a result, Law & Economics tends to attract adherents who are committed to economics as an ideology rather than as a method of analysis. Somewhat surprisingly, law professors who have been converted to the Law & Economics movement tend to be the worst breed of play-economists—and their articles tend to represent Hackonomics of the highest order. For too many law professors, being exposed to Law & Economics is like taking Arrogance Pills.

But despite my many problems with the Law & Economics movement, I'm inclined to cut Posner some slack. He paved the way for the teaching of economics in law schools, and it wasn't always easy. Posner's emphasis on economics faced fierce resistance from the other schools of legal thought, which sometimes took the form of thinly-veiled personal attacks in prestigious law reviews.

To see just how much Posner—despite his distortions of economic analysis—has improved the quality of legal scholarship, all you need to do is read one of Posner's most prominent "opponents," Robin West. This is actually the abstract of a lengthy and well-known article attacking Posner's law & economics, written by West, and published in the Harvard Law Review of all places:

Law-and-economics theorist Richard Posner has argued that principles of consent support wealth maximization as a rule of judicial decisionmaking. According to Posner, wealth-maximizing consensual transactions are morally desirable because they promote both well-being and autonomy. In this Article, Professor West draws on Franz Kakfa's depictions of human motivation to dispute the empirical basis of both justificatory prongs of Posner's thesis. Kafka's characters, she argues, suggest that when individuals consent to transactions, they often do so because of a desire to submit to authority, and not to maximize well-being or autonomy. Thus, Professor West concludes, Posner's identification of consent as the moral justification of wealth maximization rests on an inadequate view of human motivation.

To refute the empirical basis of Posner's economic analysis of law, West relied on . . . fictional stories! That's the equivalent of saying, "your analysis of human motivation is wrong because I can make up a story where humans have different motivations." These were the kinds of "intellectuals" Posner had to deal with for a long time. So I can understand if he had to dig his heels in a little too much in his advocacy of the basic neoclassical economic model.