Sunday, December 14, 2003


If you haven't yet checked out Howard Bashman's 20 Questions with Seventh Circuit Judge Richard A. Posner from a couple weeks back, it's worth a look. Posner is perhaps best known among the general public as the failed mediator in the Microsoft antitrust case--failed in the sense that parties were unable to reach an agreement under his watch--but within the legal community he is widely considered to be the most influential (for good or ill; he has many detractors) jurist and scholar of the last fifty years. (Full disclosure: I have read many of Posner's books, articles, and opinions, I agree with much of what he has written, and I took two classes with him in law school, in which I received grades slightly lower than my spectacularly average average.)

We learn among other things that his beloved cat Dinah has executed 52 mice to date (he keeps score, apparently); that he is offically eccentric, not loony (see previous parenthetical); and that he has never advocated baby selling, only baby leasing, with a back-end option to buy.

Actually I made that last bit up. Here is what he really says about that baby-selling business, in the context of his answer to a question about whether he thinks he would have been confirmed if his nomination had come before today's Senate:
I would have some trouble being confirmed today, though I might squeeze through the way Mike McConnell did, with support from liberal law professors like Cass Sunstein. (My notorious "baby selling" article had been published before I became a judge, yet didn't block me. And, by the way, let me take this opportunity to correct the record: neither in the article, nor in my subsequent writing on family law and economics, have I ever advocated "baby selling." I have merely pointed out the consequences of the present legal regime, in which monetary transfers incident to adoption are (nominally) capped, and have suggested, by way of experiment only, that some adoption agencies be permitted to pay women contemplating abortion to carry the fetus to term and put the newborn child up for adoption. I continue to think it would be a worthwhile experiment.)
Inhuman monster!

He also praises Larissa MacFarquhar's December 2001 New Yorker profile of him (available here) as "witty, perceptive, and on the whole accurate, though there are a few points that I would take issue with." He doesn’t elaborate on which these points are, though he does say that she "exaggerated" his role in the law and economics movement, which is a little like Michael Jordan claiming that he didn’t have much to do with another Chicago success story. More genuinely disputable is her rather hamhanded attempt to explain the Coase Theorem, the bedrock insight behind the economic analysis of law and the basis for Coase’s Nobel Prize; David Friedman provides a much abler if longish explanation, if you’re interested.

Also, I wonder if Posner knows about this, from a transcript of a presentation that MacFarquhar gave at Northwestern University on November 17 of this year:
For instance, I was writing an article about Judge Richard Posner, a federal judge in Chicago and also a legal theorist. He's written about 40 books, but I read a good number of them and I very much disagreed with his views. He's very conservative and a radical critic of the way justice is currently perceived in this country. I was so immersed in his reading and his writing that I became actually terrified to meet him. This man was Satan, this man actually wants to destroy our country. I worked myself into a kind of near-hysteria and I was quaking when I rang his bell. As it turns out, he's a lovely person, very amusing and we got along great. But, that fearful reaction is the kind of hysteria I can work myself up into because I'm so immersed in the person. I try to open myself to them in a way that you don't usually with the people you meet.
It’s unusual for a journalist to be this candid about her antipathy toward her subject. In this case I think she did an acceptable job of overcoming it, her rather shaky grasp of law and economics principles notwithstanding; the profile was chilly but evenhanded, and after all Posner himself was happy enough with it. Still, it makes you wonder how often Satan gets a fair shake.


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