Judge Posner first talks about his academic work. He goes on to tell us how he determines verdicts, the rationality of arguments and if he ever looks back at past decisions.
Question: Beyond a simple title, how would you describe what you do for a living?
Richard Posner: Well the academic research and writing is distinct related to the judging. So my academic work continues to be primarily focused on economic perspective on issues of law primarily, but related issues in public policy because I’ve written about aging and about sexuality. And these are topics where I think there is a neglected economic angle. But I’m eclectic, and I have brought to bear sociology, and philosophy, and other history, and so on in other areas. So that’s the academic. But as far as being a judge is concerned, we don’t choose our cases, so just take ‘em as they come. Where I’ve seen an opportunity to use economics and judging, I’ve certainly taken that opportunity. But more important really than that, my dissatisfaction with this moralistic traditional, moralistic category of law continues. And I’m disturbed by the degree to which the lawyers arguing cases to us present them in terms of this traditional vocabulary without focusing us on the facts, on practical considerations – clearly economic, but not limited to them.
Question: How do you decide what a verdict should be?Richard Posner: Well a pragmatist is someone who thinks that the consequences of a proposed course of action are the critical factor in deciding whether you wanna follow that course. And then in a judicial case there are always two sides – plaintiff and defendant. One is gonna win. Each is advocating a course of action which will have consequences, good or bad. And I’d like to get the lawyers to focus, and I’d like my own response to a case to focus on what those consequences are likely to be.Question: How do you weigh the arguments?Richard Posner: Well a lot of the time it’s just intuitive. We’re given enough facts to make a rigorous cost benefit analysis. But often one feels at least a confidence in one’s intuition that if the parties, that if you can figure out concretely what will happen if one side or the other, if one position or the other becomes the rule of law to govern future cases, one has confidence in that outcome, then one feels one is making a pragmatically sound decision.Question: Do you reconsider decisions you’ve made in the past?Richard Posner: Well judges don’t look back actually. (Chuckles) Any judge who is realistic will realize that a significant percentage of the votes he’s made in cases are either indeterminate as to whether they’re right or wrong, or they’re wrong. So I’ve sat in more than approximately 6,000 appeals in my 26 years as a judge. Now I know there’s a percentage of those cases which I voted incorrectly. But I have no inclination to look back and try to figure out which they were.
Now sometimes in a new case parties will advocate a position that is contrary to one I took in a previous case. I’m happy to re-examine my earlier position; but I don’t sort of independently in the absence of challenge look back and try to figure out what’s right or wrong.
So as I said I’ve heard more than 6,000 cases. I’ve written almost 2,500 opinions. I’ve forgotten most of them. I don’t carry 2,500 opinions in my head. But if I’m reminded about a case, as I say, I’m happy to reexamine my position.
Recorded on: Nov 21, 2007.