Tuesday, October 21, 2014

Academic Hubris and the Puzzling Case of Judge Posner

-- Posted by Neil H. Buchanan

I am serving on GW's Appointments Committee this year.  (Condolences and flowers may be sent to my office address.)  The law professor hiring process includes the annual "faculty recruitment conference" -- aka the "meat market," for lack of an animal-friendly snarky shorthand for the event -- in which first-round interviews for nearly all law schools take place at the Wardman Park Hotel in Washington every October.  With those interviews having taken place this past weekend, I have been thinking about my own experiences on the entry-level market.

In my case, however, I have two sets of experiences, because I participated on the entry-level market as an economist, and then when I changed career directions, again in the entry-level market for law professors.  One anecdote from those experiences stands out, and provides a (perhaps tenuous) bridge to discussing the evolution of Judge Richard Posner, a legal scholar and jurist who also claims to know something about economics.

In economics, as in most fields, the young scholar is advised not to "think big" in her or his dissertation research.  Be incremental and simply work from existing paradigms, adding a bell or whistle to an existing line of literature.  Although there are plenty of reasons to be cynical about that advice, it is inherently sound.  Why, after all, should a 25-year-old think that she or he is the once-in-a-generation superstar who already sees that a new idea requires not just to be taken seriously, but that the new idea turns all existing knowledge on its head?  The incrementalist approach is in some ways incapacitating, but the alternative risks absurd grandiosity.

When I was on the entry-level market, a former friend from grad school (who was a couple of years ahead of me) was excited to tell me that his college had decided to interview me, and he told me that I was a shoo-in to make it to the next stage.  At the interview, however, he began, "How is your research going to change economics as we know it?"  He was serious.  I told him that my research would not change economics as we know it, and no one else's would, either.  He persisted, but I was honest and told him what I thought.  Afterward, he told me that I had blown it, because my "thinking is too small."  (Update: In the decades since that interview, his research has not changed economics as we know it.)

Why is that relevant here?  When I went on the legal academic market, I kept thinking about that ridiculous moment when I was invited -- all but commanded -- to describe my ambitions with over-the-top grandiosity.  If I were asked that question in a law school interview, what would I say?  Maybe, I thought, my answer would be something like this doozy: "I'm here to save the world from Richard Posner."  Of course, I only would have said such a thing self-mockingly, because everyone should know that such a thing is ridiculous.  Not even the most stellar academic career could "save the world from Richard Posner," whom Professor Dorf recently (and correctly) described as "the greatest judge of his generation and one of the two most influential American judges never to sit on the Supreme Court."

No sensible academic would start his career by thinking that Posner's legacy could be argued out of existence.  To the extent that my comically exaggerated characterization could capture something meaningful, therefore, it would mean that it is important to have people with advanced training in economics who wanted to use that training to poke holes in the then-ascendant "law and economics movement" (which is how the movement's adherents talk about their research agenda).

In some ways, then, Posner was merely a stand-in for the whole Chicago-inspired attempt to turn simplistic utilitarian, rational-choice based, anti-government economic thinking into a legal school of thought.  Posner is not an economist, but he is obviously arrogant enough to think that he does not need to be one, even though he claims to be applying their insights.  And he certainly has never been shy about deriding notions of "fairness" as mere sentimentality, if they stand in the way of his particular view about how a case should come out.

Even so, Posner's use of economics was almost always opportunistic.  He would invoke economic terms like "marginal utility" to recast arguments in economic terms, even when the argument did not need to be translated into economics-ese.  For example, in one exchange with Professor Fuller, Posner insisted on calling morals "interdependent utility functions," which advanced the argument not at all.

And then there is Sex and Reason, his 1992 book that Professor Carol Sanger eviscerated in a 1993 article in USC's law review (He's Gotta Have It, 66 Southern Cal. L. Rev. 1221).  Sanger correctly called out his panorama of "just so" stories, in which people end up being gay only after having struck out when the "market for heterosexual partners" had cleared, or rape is possibly only an unpaid-for economic transaction.

Even as he was earning his stripes as a conservative hero, however, Posner was willing to go his own way.  In a 1983 contracts case arising from Indiana, Morin Bldg. Products v. Baystone Construction, Posner was willing to see past seemingly clear contract language to allow a reasonableness standard to guide a contract. True, Posner went way out of his way to assure his compatriots that his decision would not "strike at the foundations of the freedom of K," but he was still open-minded enough to see past ideology.

More politically potent was his stance in Hope Clinic v. Ryan, 195 F.3d 857 (7th Cir. 1999) (en banc), in which Posner wrote the opinion declaring that "partial-birth abortion" bans were unconstitutional.  It is plausible to say that Posner was simply being a pure libertarian there, much more true to the real Ayn Rand than the religious zealots in Congress and elsewhere who selectively invoke her views.  But it seems that something more was at work.

The occasion for Professor Dorf's column (and blog post) praising Posner was the recent 7th Circuit decision striking down bans on same-sex marriage.  There, Posner was brilliant in tearing down the arguments that opponents of SSM had put before the court.  In the short time since then, Posner has again made headlines by penning a devastating dissent in a case that allowed Wisconsin's restrictive Voter ID law to take effect (a decision that the Supreme Court quickly reversed).

Posner's opinion was so politically salient that the Talking Points Memo blog published "9 Scathing Quotes From Judge Posner's Dissent Against WI Voter ID."  Number 1 reads: "Some of the 'evidence' of voter-impersonation fraud is downright goofy, if not paranoid, such as the nonexistent buses that according to the 'True the Vote' movement transport foreigners and reservation Indians to polling places."  Number 8 reads: "There is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud, if there is no actual danger of such fraud, and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens."  (I would not describe the others as all "scathing," but that is hardly the point.)

In some ways, this could simply be another example of Posner seeing a case and being agile enough to write an opinion that supports his predetermined outcome.  But we know that Posner has been quite clear about being "guilty" of bad reasoning in an earlier Voter ID case, and if anything, he is now saying that his eyes are opened by new evidence, and also by being willing to look past rhetoric to determine motive.

Posner is certainly no liberal, but as with so much of the political/legal universe, what used to be called simple realism now exists almost exclusively on the liberal side of the divide.  Even the late Chief Justice Rehnquist reportedly looked around in his later years and wondered where all the crazy people in his camp had come from.

It might be said, in any case, that Richard Posner has saved the world from Richard Posner, as only he could.