Judge Posner, a Modern Day Chancellor in Equity: An Explanation of Wisconsin Knife Works v. National Metal Crafters (original) (raw)

The Problems of Jurisprudence by Richard A. Posner

1990

Reviewed by Raymond B. Marcin* Dust off those old copies of William James.' Pragmatism is "in." 2 Richard A. Posner's newest book, THE PROBLEMS OF JURISPRUDENCE, may well signal the vocabulary of Pragmatism as the lingua franca of jurisprudence in the 1990's. Those who are looking for a "unified field theory" to encompass all of the insights of the great jurisprudential movements of today will find something to chew on in Posner's new book. He does not announce such a theory; in fact, he all but discounts it in his treatment of literary, feminist, and criticalist jurisprudence. In his endorsement of philosophical pragmatism, however, he provides a vocabulary and a set of concepts that render communication among the various contemporary schools, especially the law-and-economics and so-called new-legal-process schools, possible and even efficient. There is a surprise or two in the book for doctrinaire law-and-economics disciples. Posner actually modifies some of his previously published views on wealth maximization, which he now sees as playing only a "limited role" in his theory. 3 Indeed, he spends a goodly portion of the book recasting the wealth-maximization approach to law in pragmatic terms. 4 In reading the * Judge of the United States Court of Appeals for the Seventh Circuit; Senior Lecturer, University of Chicago Law School.

Posnerian Jurisprudence and Economic Analysis of Law: The View from the Bench

University of Pennsylvania Law Review, 1985

Judge Richard A. Posner, of the United States Court of Appeals for the Seventh Circuit, is a renowned scholar in the field of law and economics. Since his appointment to the bench, on December 4, 1981, Judge Posner has had an opportunity to apply in his opinions some of the theories he has so forcefully propounded in his numerous books and articles.' Posner's innovative methodological approach has won him widespread fame and criticism and has made him a top contender for nomination to the Supreme Court during President Reagan's second term. 2 The simple yet powerful idea that drives Posner's theories is that economic 3 analysis is a valuable tool for understanding, interpreting, and creating law. An examination of Posner's judicial work affords an unprecedented opportunity to evaluate the usefulness of economic analysis in judicial decisionmaking. Posner's opinions demonstrate some of the strengths and limitations of the economic analysis of law as a jurisprudential methodology. More importantly, an examination of Posner's opinions reveals t B.A. 1982, Yale University; J.D. Candidate, Ph. D. Candidate (Economics),

Judge Posner, Judge Wilkinson, and Judicial Critique of Constitutional Theory

SSRN Electronic Journal, 2000

Judge Richard Posner's well-known view is that constitutional theory is useless. And Judge J. Harvie Wilkinson III has lambasted constitutional theory for the way in which its "cosmic" aspirations threaten democratic self-governance. Many other judges hold similar views. And yet both Posner and Wilkinson-in the popular press, in law review articles, and in books-have advocated what appear to be their own theories of how to judge in constitutional cases. Judicial pragmatism for Posner and judicial restraint for Wilkinson seem to be substitutes for originalism, living constitutionalism, political process theory, and so on. But both Posner and Wilkinson also deny that they are offering a theory at all. This is puzzling. How do these judges simultaneously reject constitutional theory yet seemingly replace it with theories of their own? This Article answers that question-a question that must be answered in order to understand the present-day relationship between constitutional theory and constitutional adjudication. The perspectives of Judge Posner and Judge Wilkinson are particularly valuable because they have not only decided hundreds of constitutional cases but have also written extensively about constitutional theory. Drawing on a close reading of revealing slices of both their extrajudicial writing and their judicial opinions in constitutional cases, this Article makes three contributions. First, it brings to light agreements between Posner and Wilkinson that run far deeper than the heralded differences between them and that stem from their situated understanding of their judicial role. Second, it exposes the limited influence of judicial pragmatism and judicial restraint on these judges' own constitutional jurisprudence even in those cases where one might expect constitutional theory to exert maximal influence. Third, it explains how judicial pragmatism

Where’s Judge Posner’s Conservatism? On the Prospect of a Conservative and Pragmatic Judicial Theory

In this paper I will (1) distinguish methodological conservatism in judicial theory from political conservatism (2) I will examine the use of the term conservative to describe Richard Posner's judicial philosophy in order to determine if the designations of conservative, when applied to Posner, are of the methodological or political stripe. (3) I will suggest that pragmatic judicial theory is guided by a norm of methodological conservatism. This will allow me to outline the features of a pragmatic and conservative judicial theory. The possibility of pragmatic conservatism in judicial theory hinges on three fronts (a) a mistrust of pure formalism, (b) a pragmatic philosophy of history, which by constraining the use of history for service in the present, resists historical relativism, and (c) an attention to the customary and cultural features of the present situation or case.

Reconstructing the Legacy of Pragmatist Jurisprudence

Pragmatism Today, 2012

In Law, Pragmatism and Democracy, Richard Posner wrestles with the ghost of John Dewey for the mantle of pragmatist jurisprudence. Most commentators have seen this work as pitting Posner against Dewey in a contest of pragmatisms, the stakes for which are no less than their respective legacies for legal and democratic theory. Some have sided with Posner and others with Dewey. I contend that the commentators have misidentified the target of Posner’s critique. Posner had another legal theorist in mind and he was disingenuous in naming Dewey. A careful reconstruction of Posner’s argument shows that Dewey’s pragmatism provides a genuine middle way between Posner’s position and that of his intended rival.

The Closing of the Judicial Mind

Claremont Review of Books, 2009

Judge Posner has no problem with the legislative character of judging, particularly in the Supreme Court. As he does in much of his voluminous work, Posner uses a model drawn from economics to describe the constraints on a judge's decision-making: the judge as labor market participant. Under that rubric, Posner makes a detailed and informative analysis of both the internal and external

Realism, Pragmatism and the Appellate Judge

The Modern Law Review, 1991

The Case Law System in America. Translated by Michael Ansaldi. Edited by Paul Gewirtz. Chicago: University of Chicago Press, 1989, xxviii + 127 pp. Hardback f19.95.

Book Notes: How Judges Think, by Richard A. Posner

Osgoode Hall Law Journal, 2009

Book Note This Book Note is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons.