Richard A. Posner, an iconoclastic federal appellate judge and prolific author who was widely known for his provocative intellect and was ranked by many in the legal world as second in influence only to members of the U.S. Supreme Court, died Wednesday. He was 87.
The University of Chicago Law School did not provide a cause of death or say where he died.
Mr. Posner’s restless mind was on grand display both in the courtroom, where he at times flustered lawyers with his hectoring manner, and in his staggering output of published writings on topics ranging from esoteric antitrust law to sex and aging.
He embodied an “erratic genius, herculean work ethic and irrepressible ambition,” Yale Law School professor John Fabian Witt once wrote in the New York Times. “In the past half-century there has been no figure more dominant or more controversial in American law.”
During his nearly 36 years on the U.S. Court of Appeals for the 7th Circuit in Chicago, from 1981 to 2017, Mr. Posner wrote more than 3,300 judicial opinions. He wrote or co-wrote more than 40 books, some with updated editions, bringing total publications to more than 65 volumes during his life.
Mr. Posner, the New Yorker magazine once reported, was, “by a wide margin, the jurist most often cited in scholarly articles — cited almost as much as the next two, Ronald Dworkin and Oliver Wendell Holmes, added together.”
He wrote hundreds of law review articles, lectured regularly at the University of Chicago Law School and maintained an elaborate and widely read blog with Gary Becker, a Nobel laureate in economics, in which the two traded rapid-fire arguments on legal and economic issues.
He readily confessed to being a workaholic. “I don’t have a sharp sense of the difference between work and play,” he told the Times in 1999.
Before he became a judge, Mr. Posner ran a litigation consulting firm where he helped pioneer the concept of applying economic analysis to legal issues. He developed his approach more fully in his book “Economic Analysis of Law” (1973), now a classic text, contending that the economic consequences of laws should be considered in all aspects of the legal system. He once proposed abolishing adoption agencies to stop black-market adoptions and allowing pregnant women to sell unwanted babies on the open market.
Mr. Posner was appointed to the 7th Circuit in 1981 by President Ronald Reagan, a Republican, but he was not easily pigeonholed as liberal or conservative.
He evolved from his economic cost-benefit pragmatism early in his career to advocacy later of more liberal positions on such issues as workplace discrimination, voter ID laws, same-sex marriage and physician-assisted suicide for the elderly.
He favored legalizing marijuana but questioned animal rights. “It is wrong to give as much weight to a dog’s pain as to an infant’s pain,” he argued in a debate with animal rights advocate Peter Singer in 2001.
Despite his brilliance and energy, Mr. Posner was never seriously considered for the Supreme Court, according to William Domnarski, a legal scholar and author of the biography “Richard Posner” (2016).
When a vacancy opened in 1987, Mr. Posner was passed over by Reagan, not because of his controversial legal utterances, Domnarski said, but because Reagan “wanted an originalist” — a jurist who attempts to interpret the Constitution in the way its writers intended.
If anything, Judge Posner was an anti-originalist. “I pay very little attention to legal rules, statutes, constitutional provisions,” he told the Times at his retirement in 2017. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”
He viewed the Constitution as flexible and applied that mindset to controversies including torture in the wake of the terrorist attacks of Sept. 11, 2001.
“The greater the potential value of the information sought to be elicited by an interrogation, the greater should be the amount of coercion deemed permitted by the Constitution,” he wrote in his book “Not a Suicide Pact: The Constitution in a Time of National Emergency” (2006). “The Constitution contains no explicit prohibition of coercive interrogation, or even of torture, to block such an approach.”
Several of his books were sharply critical of his fellow jurists. At his retirement, he shocked the legal world by self-publishing a 300-page paperback entitled “Reforming the Federal Judiciary” that accused his own court of “massive indifference” to the “pro se” defendants, many of them indigent and incarcerated, who represent themselves.
Throughout much of his career, Mr. Posner appeared blind to political correctness. That tendency was perhaps most dramatically displayed in his book “Sex and Reason” (1992), a survey of sexual mores, practices and superstitions across history and cultures, including a no-holds-barred analysis of the economic aspects of issues ranging from polygamy and incest to pornography and conventional marriage.
Mr. Posner conceded in Domnarski’s biography that the application of economic analysis to sex was controversial but argued that it provided a critical “acid bath” that stripped away “layers of ignorance, ideology, superstition, and prejudice.”
He had a “passion for exposing humbug and pseudo-profundity with an odd but genuine sort of social compassion, a delight in shocking the self-righteous with a love of human diversity and freedom,” wrote philosopher and Posner friend Martha C. Nussbaum in her review of the book in the New Republic in 1992.
While lauded by admirers as a public intellectual and Renaissance man — he was an opera buff and close reader of Shakespeare and poet William Butler Yeats — his detractors saw his literary productivity as overrated. “His reputation is largely a function of how prolific he is, not really how thoughtful,” Columbia Law School professor Vincent Blasi told Newsweek in 1985.
Mr. Posner’s commercially popular book “An Affair of State” (1999), about President Bill Clinton’s sex-tinged impeachment and acquittal, also drew fire from legal critics. In typical straightforward manner, the judge savaged Clinton for engaging in “gaudy public and private lies, vicious slanders … [and] hypocritical displays of contrition.”
The late constitutional scholar Dworkin, who often parried with Mr. Posner, hammered the book for lacking neutral scholarship and said it was “injudicious, to put it mildly, for a judge to make such a public parade of his own politics.”
Mr. Posner later distanced himself from many of his more provocative pronouncements and, in an unusual gesture by a federal judge, questioned whether he had ruled correctly on a major national issue: voter identification laws.
After writing a majority opinion in 2007 upholding Indiana’s law requiring photo identification, he wrote in his book “Reflections on Judging” (2013) that the law is “now widely regarded as a means of voter suppression rather than of fraud prevention.”
He went on to say in a clarifying article in the New Republic, also in 2013, that judges sometimes lack relevant “empirical data” to help decide specific cases, and for that reason “I may well have been wrong” in the Indiana voter ID case.
An early academic career
Richard Allen Posner was born in New York City on Jan. 11, 1939, the only child of Max Posner and the former Blanche Hofrichter. His parents became enmeshed in Communist Party activities, but after Max Posner became a lawyer specializing in property law, the family moved to suburban Scarsdale, New York, raising Richard in middle-class comfort.
He graduated in 1959 from Yale University and in 1962 from Harvard Law School, where he was president of the law review. He clerked for Justice William J. Brennan Jr., a liberal titan of the Supreme Court, in 1962 and 1963, then spent several years as a lawyer for the Federal Trade Commission and President Lyndon B. Johnson’s Task Force on Communications Policy. He also served as an assistant to then-U.S. Solicitor General Thurgood Marshall, later the first African American Supreme Court justice.
Mr. Posner switched to an academic career in 1968 and spent nearly all of it at the University of Chicago Law School. He taught torts, antitrust law and economic analysis of law until his appointment to the Court of Appeals in 1981. He served as chief judge from 1993 to 2000.
In 1962, Mr. Posner married Charlene Horn. They had two sons, Kenneth and Eric. Details on his survivors were not immediately available.
A jurist of enormous stamina, Mr. Posner spent long days at his office in downtown Chicago, occasionally walking up to his chambers on the 27th floor. He worked on his books at night, writing rapidly, with his wife doing manuscript edits.
His books, most published by university presses, ranged from “How Judges Think” (2008) and “Law and Literature: A Misunderstood Relation” (1988) to “Countering Terrorism: Blurred Focus, Halting Steps” (2007) and “Private Choices and Public Health: The AIDS Epidemic in an Economic Perspective” (1993), co-authored with Tomas J. Philipson.
Speaking partly in self-parody, partly with his off-center humor, he told the New Yorker in 2001 that he had “exactly the same personality as my cat.”
“I am cold, furtive, callous, snobbish, selfish, and playful,” he said, “but with a streak of cruelty.”
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