Richard Posner: How do you contribute?

Richard Posner is an influential legal theorist and author and currently a judge on the United States Court of Appeals for the Seventh Circuit. Posner attended Yale as an undergraduate, and was first in his class at Harvard Law School. Following his graduation from Harvard, Posner clerked for Justice William J. Brennan Jr.; he later worked as assistant to the Solicitor General of the United States. In 1969, Posner began teaching at the University of Chicago Law School, where he remains a Senior Lecturer to this day. In 1981, Posner was appointed to Seventh Circuit's Court of Appeals. Posner helped found the law and economics movement, which argues that the primary goal of law should be outcomes that are economically sensible and efficient rather than "just." Known for his eclectic mix of beliefs, Posner can't be pigeonholed as a liberal or a conservative: he has written that marijuana should be legalized and also that there are times when "torture should be used." Posner was the founding editor of the Journal of Legal Studies and (with Orley Ashenfelter) the American Law and Economics Review. Posner is the author of dozens of books, including Public Intellectuals, and The Problems of Jurisprudence, and How Judges Think, which was published in April 2008.  His next book A Failure of Capitalism: The Crisis of '08 and the Descent into Depression will be released May 2009.

  • Transcript


Question: How do you contribute?

Richard Posner: Well I’d like to think all my traditional twenty six years as a judge, I think there’s some impact on legal doctrine in many areas that are quite unrelated to these hot constitutional issues. And then as far as more academic thinking or writing. Or not all academic; some of it semi-popular. Well I’d like to think that it’s helped to show how helpful economics can be in dealing with a variety of public policy issues. And also helping us to understand the courts, and understanding the vacuity of a lot of this, both the traditional legal vocabulary and the more theoretical, constitutional argumentation that’s succeeded that we’ve been discussing.

Now if you asked me this question 30 years ago or something, 20 years ago, in the ‘70s, which was a very different era in economic thought in this country, I thought then what I was trying to do was part of the movement – originally a very small movement – was to revise antitrust law and regulatory law to give much more play to free markets and be much less, to use a French term. But that war was won, beginning with the Reagan administration. That war has been won. So now we’re dealing with a lot of other issues.

And in recent years I’ve been particularly concerned with catastrophic risks. One is global warming where I wrote a book called “Catastrophe”. It was published in 2004 and written in 2003. And I take some pride in the fact that despite being a conservative, often we thought to be a really reactionary beast, I did think global warming, I thought it was a very serious problem. And I was particularly concerned because back to the question on concern, I was particularly concerned that people were too much focused on the consensus predictions as to the consequence of global warming, which was a smooth, gradual increase over the 21st century which would have very serious consequences, but not until the later part of the century. And what I emphasized in my book was that there’s a great deal of uncertainty about this, and that it could be much more rapid; and that we shouldn’t just look at the consensus forecast.

Again it’s basic cost-benefit analysis. If there’s a one percent chance of a very serious disaster, you don’t ignore it by saying, “Well it’s one percent. We’re not gonna worry about it until it’s 51 percent or 100 percent.” And it has turned out since 2003 or 2004 that the scientists were underestimating the rapidity of global warming. And so now it’s recognized as a more serious problem where we should have been dealing with it 10 years ago. And we should have been saying look we have this consensus forecast. It’s gradual. It’s not too alarming; but we have a substantial uncertainty as to, it could be much milder than we think. It could be much more severe. We have to worry about the severe, and the distribution of probabilities.

And I was, and remain, also very concerned about the terrorism problem. I don’t think we’re dealing with it very well. And you know there are civil liberties concerns. I’ve written about that. But I do think we have to, again, take the risks of terrorist attacks with weapons of mass destruction seriously. I think it’s relatively low probability; but low probability events with very bad outcomes, if they materialize, deserve serious consideration.

So as I say, the problems have changed since the ‘70s, but I hope I’ve been keeping abreast of the current problems in trying to make a constructive contribution.

Recorded on: Nov 21, 2007