No one disputes Richard Posner's reputation. He is the prolific, paternal protagonist of the law-and-economics school. As an
academic, he defined and elaborated economic analysis of law and legal institutions. As a judge on the United States Court of
Appeals for the Seventh Circuit, he is a productive powerhouse, deftly weaving his economic threads into the loom of the law.
Some antagonists who tired of (or objected to) the Posnerian approach in academia thought navely that an appoint- ment to the
bench would confine and perhaps exhaust Posner's considerable curiosity and inexhaustible energy. If anything, judicial
experience has made him more productive. Besides writing more opinions by far than any of his colleagues, Posner manages to
contribute to the scholarly enterprise in ever more inventive ways. Jurisprudence, law and literature, reputation, and soon,
sexuality, are his most recent off-the-bench, book- length outputs in just the last three years. Praised for inven- tion, Posner
manages with apparent effortlessness to focus his powerful gaze on fascinating questions.
In this monograph-length study, based on the Cooley Lectures at the University of Michigan in 1989, Posner explores the
reputation of Nathan Benjamin Cardozo, who served as a judge (and later chief judge) on New York's highest court, the Court
of Appeals, from 1914 to 1932. President Herbert Hoover nominated Cardozo to be the 75th justice of the Supreme Court of
the United States; he served from 1932 to 1938.
There is a division of opinion concerning Cardozo's place in the pantheon of great jurists, and Posner analyzes and reflects on
Cardozo's life and writings to evaluate his contributions. Cardozo's critics have come to question his liberalism (is it authentic?),
his judicial philosophy (is it more than bromides?), and his writing style (is it "obese and archaic"?). These are legitimate issues
to explore, argues Posner, given the dearth of critical assessments of Cardozo and of judges generally.
The first three chapters are devoted to Cardozo's life, philosophy, and judicial technique. Here Posner displays his ample gift
for exposition and criticism. He penetrates Cardozo' style, offering explanations for Cardozo' distinctive prose. A common
example is Cardozo's inversion of subjects and predicates. ("Negligent the act is, and wrongful in the sense that is is unsocial,
but wrongful and unsocial in relation to other travel- ers, only because the eye of vigilence perceives the risk of danger." [This
from Cardozo's much celebrated and criticized opinion in Palsgraf v. Long Island R. Co. quoted in Posner p.44.] Cardozo also
used metaphor and aphorism; and critics have labeled his style "ornate." Posner takes issue with these critics and defends
Cardozo rightly for his brevity and vividness. If Cardozo's style merits criticism, it is for sometimes writing with "exotic grace."
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The first third of Posner's study reveals much of Posner's skill as literary critic and accessible expositor. Social scientists will
perk up in much of the remainder when Posner reveals his analytic creativity. He begins by formulating a theory of reputation,
by which he means reputation in the broad sense of being "widely regarded in a good light" or the equiva- lent to fame.(58)
Regrettably, Posner does not offer a succinct statement of his theory, but implies such a theory from a set of general points
about reputation:
that it is facilitated by the "generality, variety, and ambiguity of the reputee's work."
that luck bears on reputation. [In terms of posthumous fame, Lincoln died at the right time and in the right man- ner.(62)]
that time is another factor, for in time good luck and bad luck should wash out the random element in reputation as- sessment.
that politics plays a role in reputation. Judges closely associated with ideologies (e.g., of liberalism or conserva- tism) are likely
to be in the running with high reputations because they are exemplars of that ideology.
Any discussion and explanation of reputation calls for some tool to measure it. Posner employs citation analysis as such a
yardstick. He examines the virtues and liabilities of citation analysis in assessments of academic scholarship. Though they are an
imperfect proxy for reputation, Posner concludes that citation counts are an acceptable index of quality, especially when critics
have posed no viable empirical substitute. Posner then elaborates the special problems associated with legal citations and
lawyers as citers. With all its imperfections, citation studies for Posner are a tool to measure judicial reputation.
Posner's citation research is illuminating. His approach is akin to triangulation. While acknowledging the imperfections in citation
studies, he employs citations from a number of creative directions and bases: citations to names of judges and to judges and
scholars; citations by courts to opinions by Cardozo and other judges with whom he sat; comparisons of citations to Cardozo's
Supreme Court opinions with opinions of Brandeis and Stone; and a comparison of citations to Cardozo and other judges
opinions in contracts and torts casebooks. For example, Posner searched the principal law reviews electronically for articles
mentioning well-known judges. (Posner's name was not on the list, but out of modesty not lack of influence.) Professional
reputation in the law, as measured by these citations, is strong- ly correlated with a seat on the Supreme Court and with
recency. Justices Brennan and Rehnquist lead the pack of judges and scholars in the period covered by Posner's data
(1982-89). Posner refines his citation tool by comparing citation counts to Cardozo's 1914 opinions with counts to his
colleagues 1914 opinions. (1914 was Cardozo's first year on the New York Court of Appeals. Decisions were assigned by
rotation; Cardozo had no control over decisions
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assigned to him.) The evidence from multiple directions shows that Cardozo exercised far more influence on the law than his
colleagues, as measured by citations to his opinions. Further elaboration of the citation counts reveals Cardozo's influence to
citing courts in other states and to federal courts, far outdis- tancing colleagues who, at the time, were regarded in Cardozo's
league. From so many directions, the evidence points to Cardozo's high reputation.
Posner then synthesizes legal analytics and reputation analysis. Cardozo's reputation was established as a common-law judge
on the New York Court of Appeals. His appointment to the Supreme Court, where he served only six years, may well have
been anticlimactic. He did not leave a strong imprint on any field of Supreme Court jurisprudence, which also coincides with
Posner's citation analysis.
What then does Posner make of Cardozo's reputation? He is unquestionably the most famous common-law judge of the
twentieth century but far from the most influential judge. Cardozo's impact derives from his exposition and synthesis, not his
intel- lectual creativity. "He made law clearer, more interesting, more intelligible," observes Posner. Two primary factors
outdistance other explanations of Cardozo's eminence: the rhetoric of his opinions and his judicial program (stated in THE
NATURE OF THE JUDICIAL PROCESS) "of bringing law closer to the (informed) nonlawyers sense of justice." Cardozo's
skill was in sugar coating his pragmatism with respect for precedent.
In an Epilogue, Posner suggests several avenues for re- search. There is much here for quantitative and nonquantitative
investigators. It should fuel other investigations simply because the idea of reputation needs more work. For example, Posner
urges examination of the unsampled Cardozo opinions and the unsampled opinions of Cardozo's colleagues on the Court of
Appeals. Here Posner seeks further testing of his hypotheses. But if such a study only confirms Posner's findings, there is little
evidence that such an endeavor will aid the investigator's reputation (though it may add marginally to Posner's). Such is the
structure of present-day social science, unlike present-day science, that it gives little credit for the confirmation of another
investigator's hypotheses. However, an investigator might build or establish a reputation in the event that he proved Posner
wrong.
Posner also offers up investigations of opinion assignment, signed versus per curiam opinions, quantitative analysis of judicial
reputation, and studies of the literary dimension of opinion writing. All of this is well worth considering. The subjects and the
techniques are familar to social scientists in public law. The increasing availability of LEXIS places critical judicial studies, like
Posner's examination of Cardozo, within our grasp. Posner has once again illuminated a worthy enterprise with by his creative
gaze. Time will tell whether he has become a beacon leading others in his path.
