The following blog post was co-authored by R Street Senior Fellow Ian Adams.
Love him or hate him, there is no disputing that Judge Richard A. Posner, who retired from the 7th U.S Circuit Court of Appeals Sept. 2, is a legend of American jurisprudence. Known for his deep knowledge of economic theory, which he regularly weaved into his opinions, Posner authored some of this generation’s the most profound rulings in the fields of antitrust, copyright and patent.
Named by President Ronald Reagan to the 7th U.S. Circuit Court of Appeals in 1981, when Posner was just 42, he later became the favorite to replace Sandra Day O’Connor on the Supreme Court in 2005. Alas, his ascent to the nation’s highest court did not to come to pass. Posner’s outspoken nature and personal disdain for the role of the high court—which he likened to “the House of Lords, a quasi-political body“—scuttled his candidacy before it could move forward in earnest.
Yet from his perch on the 7th Circuit, Posner was able to do more to develop his uniquely pragmatic and economically informed take on jurisprudence than many Supreme Court Justices accomplish during their careers. His significance as a jurist is evidenced not only by his more than 3,300 opinions as a member of the federal bench, but the fact that he became the most cited legal scholar of the 20th century. In an era defined by “purposive” and “textual” jurisprudence, Posner’s approach followed a straightforward approach: find what is right and what is wrong and express it in colloquial language familiar and accessible to those outside of the legal profession.
Naturally, strict constructionists, who aspire to hew closely to the four corners of the U.S. Constitution, saw Posner as everything that is wrong with the third branch of government. His occasionally flippant disregard for the Constitution—once going so far as to say that he saw “no value to a judge” spending any amount of time studying the Constitution’s text—could not have been better designed to trigger outrage from his colleagues and friends on the right.
Perhaps because he was largely unmoored from the past, Posner’s jurisprudence translated well to new frontiers of legal thought. Throughout his career, he was an undisputed champion for user-rights in the digital age. In 2012, he wrote that protections for copyright and especially patent had become excessive. His view was simple: when protections provide an inventor with more “insulation from competition” than needed, it will result in increased prices and distortions in the market. As more companies seek overly broad patents, the parties who suffer most are consumers.
In his essay “Intellectual Property: The Law and Economics Approach,” Posner spoke openly about his views of limiting copyright terms, the idea/expression dichotomy and fair use, as well as laying out a novel approach to piracy. He maintained that the analogy to “piracy” was born of a misconception that intellectual property is indeed physical property. In Posner’s view, if an individual who was never going to buy a copy of a registered work illegally copies the work, there is no market deficit. It’s only when pirates make and sell copies to individuals who would normally buy the work that the copyright owner is affected. Poser didn’t excuse bad actors, but applied rigid cost/benefit analysis to the parties and judicial economy.
Posner also was a thoughtful academic with a longtime appointment to the University of Chicago School of Law. He was committed to mentoring legal talent. Lawrence Lessig—famous for his work on remixed works and as creator of Creative Commons—once clerked for Posner. He has authored three dozen books thus far, on subjects that range from terrorism to sex. He was also the co-creator of the Posner-Becker blog, which ran until Nobel laureate economist Gary Becker’s death in 2014. The blog provided an outlet for the University of Chicago professors to muse over rulings, explore current events and show a human side to their work.
Despite this heady list of accomplishments, the single act that may garner Posner the most ongoing acclaim from law students was his hatred of the citation manual known as “Blue Book.” In his essay, “The Blue Book Blues,” he wrote—tongue firmly in cheek—that all copies of the style guide should be burned because it “exemplified hypertrophy in the anthropological sense.”
Posner’s legacy will be felt for generations to come. His opinions and his other writings make clear the law is as much a tool for learning as it is a tool for justice.