Overcoming Law

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Overview

Legal theory must become more factual and empirical and less conceptual and polemical, Richard Posner argues in this wide-ranging new book. The topics covered include the structure and behavior of the legal profession; constitutional theory; gender, sex, and race theories; interdisciplinary approaches to law; the nature of legal reasoning; and legal pragmatism. Posner analyzes, in witty and passionate prose, schools of thought as different as social constructionism and institutional economics, and scholars and ...

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Overview

Legal theory must become more factual and empirical and less conceptual and polemical, Richard Posner argues in this wide-ranging new book. The topics covered include the structure and behavior of the legal profession; constitutional theory; gender, sex, and race theories; interdisciplinary approaches to law; the nature of legal reasoning; and legal pragmatism. Posner analyzes, in witty and passionate prose, schools of thought as different as social constructionism and institutional economics, and scholars and judges as different as Bruce Ackerman, Robert Bork, Ronald Dworkin, Catharine MacKinnon, Richard Rorty, and Patricia Williams. He also engages challenging issues in legal theory that range from the motivations and behavior of judges and the role of rhetoric and analogy in law to the rationale for privacy and blackmail law and the regulation of employment contracts. Although written by a sitting judge, the book does not avoid controversy; it contains frank appraisals of radical feminist and race theories, the behavior of the German and British judiciaries in wartime, and the excesses of social constructionist theories of sexual behavior.

Throughout, the book is unified by Posner's distinctive stance, which is pragmatist in philosophy, economic in methodology, and liberal (in the sense of John Stuart Mill's liberalism) in politics. Brilliantly written, eschewing jargon and technicalities, it will make a major contribution to the debate about the role of law in our society.

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Editorial Reviews

New York Times Book Review
Judge Posner's book...is about the economics of practicing and studying law: the incentives and disincentives faced by judges, lawyers and law professors. The book describes the legal profession as a collapsing cartel, a decadent guild coming to terms with market competition...It is by far the best--the most scholarly, the most thoughtful, as well as the sharpest and most provocative--of the current crop of commentaries on the plight of law today.
— Jeremy Waldron
ABA Journal

Overcoming Law collects Richard Posner's major articles and essays from recent years. While the book is an assemblage of smaller pieces, "it is meant to be read consecutively" and in fact lays out a distinct and formidable theme: a view of law Posner describes as "pragmatic" rather than formalistic or ideological...One lingering aftertaste of the book is that political and intellectual labels in our time have been degraded almost beyond recognition. Another, and stronger, is that Posner is the real thing: a philosopher and intellectual who despite his immense learning has retained a strong sense of the humane and the decent. If that is pragmatism, then we need more of it.
— Paul Reidinger

Reason

Reflecting the breadth of the author's interest, the book ranges widely through the law and beyond...Posner is clearer here than in any of his previous work that there is—that there must be—more to the practice of judging than economics, or any similarly formal deductive system, can provide...His ideas are surely worth a look.
— David G. Post

Law and Politics Book Review

Overcoming Law takes the reader on a dazzling intellectual tour. Judge Richard Posner offers fascinating commentary on subjects ranging from the law of medieval Iceland to the legal community of the contemporary South Bronx. His interests range from the organization of legal services to the economics of homosexuality. Moreover, Posner is an exceptionally accessible and civil guide to this remarkable range of legal concerns.
— Mark A. Graber

Yale Law Journal

A dazzling collection of recent essays...Richard Posner is the most prolific and creative judge now sitting on the federal bench. The essays in Overcoming Law, like everything he writes, are exhilarating in their range and wit and candor.
— Jeffrey Rosen

New York Times Book Review - Jeremy Waldron
Judge Posner's book...is about the economics of practicing and studying law: the incentives and disincentives faced by judges, lawyers and law professors. The book describes the legal profession as a collapsing cartel, a decadent guild coming to terms with market competition...It is by far the best--the most scholarly, the most thoughtful, as well as the sharpest and most provocative--of the current crop of commentaries on the plight of law today.
ABA Journal - Paul Reidinger
Overcoming Law collects Richard Posner's major articles and essays from recent years. While the book is an assemblage of smaller pieces, "it is meant to be read consecutively" and in fact lays out a distinct and formidable theme: a view of law Posner describes as "pragmatic" rather than formalistic or ideological...One lingering aftertaste of the book is that political and intellectual labels in our time have been degraded almost beyond recognition. Another, and stronger, is that Posner is the real thing: a philosopher and intellectual who despite his immense learning has retained a strong sense of the humane and the decent. If that is pragmatism, then we need more of it.
Reason - David G. Post
Reflecting the breadth of the author's interest, the book ranges widely through the law and beyond...Posner is clearer here than in any of his previous work that there is--that there must be--more to the practice of judging than economics, or any similarly formal deductive system, can provide...His ideas are surely worth a look.
Law and Politics Book Review - Mark A. Graber
Overcoming Law takes the reader on a dazzling intellectual tour. Judge Richard Posner offers fascinating commentary on subjects ranging from the law of medieval Iceland to the legal community of the contemporary South Bronx. His interests range from the organization of legal services to the economics of homosexuality. Moreover, Posner is an exceptionally accessible and civil guide to this remarkable range of legal concerns.
Yale Law Journal - Jeffrey Rosen
A dazzling collection of recent essays...Richard Posner is the most prolific and creative judge now sitting on the federal bench. The essays in Overcoming Law, like everything he writes, are exhilarating in their range and wit and candor.
Sanford Levinson
Overcoming Law is an extraordinary book, brimming with stimulating ideas on almost every page. I couldn't put it down. The book will trigger some significant national debates, especially given the blazing attacks the author delivers on the limitations of contemporary legal education and the deficiencies of contemporary legal thought, including that manifested by the Supreme Court. In breadth of interest, he can be compared only to people like Holmes, William O. Douglas, Jerome Frank, and Joseph Story.
Daniel Farber
Overcoming Law is as good as anything being written about law and legal scholarship today. The essays go for the intellectual jugular; they're sometimes devastatingly witty; and on occasion, even passionate. Posner is a towering figure in American law, both as a judge and as a scholar, and one of his greatest merits has been his capacity for intellectual growth. This book demonstrates a major development in his thought.
Mark A. Graber
OVERCOMING LAW takes the reader on a dazzling intellectual tour. Judge Richard Posner offers fascinating commentary on subjects ranging from the law of medieval Iceland to the legal community of the contemporary South Bronx. His interests range from the organization of legal services to the economics of homosexuality. Moreover, Posner is an exceptionally accessible and civil guide to this remarkable range of legal concerns. Although readers of some chapters, particularly those discussing lesser known law review articles and debates within the economics community, may feel that "you had to be there," most intelligent readers will easily understand and enjoy most of Posner's prose. Few books of more than five hundred pages read as easily as OVERCOMING LAW. Proponents of the multicultural left may be irritated by Posner's occasional PC-tweaking, but his writing consistently takes a respectful tone towards those with whom he strongly disagrees. Unlike many academic lawyers, Posner treats scholars he criticizes as holding mistaken intellectual views rather than persons guilty of more venal sins. Most of the chapters in OVERCOMING LAW reprint many of Posner's previous articles, but a common theme animates the whole. Posner is dedicated "to nudg[ing] the judicial game a little closer to the science game" (8), a game he maintains is played by pragmatic empirical investigation of social reality rather than by abstract manipulation of formal conceptions. He is particularly disturbed by the "methods of analytic philosophy" that are used in "conventional legal reasoning" and "the weak sense of fact that is so marked a characteristic of legal scholarship in general" (172). What legal scholarship needs to be "an effective instrument for understanding and improving the law," Posner argues, is "a taste for fact, a respect for social science, an eclectic curiosity, a desire to be practical, a belief in individualism, and an openness to new perspectives," characteristics associated with "pragmatism," "economics," and "liberalism" (viii). Most of OVERCOMING LAW is devoted to documenting the empirical failings of virtually all forms of legal scholarship. In chapter after chapter, Posner points out how numerous legal scholars are guilty of failing to treat the empirical components of their subject seriously. Both conservative and liberal legal scholars, in his view, too often fail to discuss or discuss adequately the actual costs and benefits of their proposed legal rules and practices. These critiques are by and large interesting, thought provoking and sometimes surprising. Thus, while Posner not surprisingly questions the empirical underpinnings of many legal calls for increased state regulation, he also asserts that a jurisprudence of original intention to be inadequate because that "theory of constitutional interpretation . . . ignores consequences" (245). Indeed, Posner even suggests that some law schools should establish "racial quotas for its faculty" so as to provide an empirical test of whether such policies "raise the quality of legal scholarship" in ways that critical legal scholars maintain (108). Still, if OVERCOMING LAW was going to critique virtually every piece of contemporary legal writing, Posner should have devoted a chapter to OVERCOMING LAW, a work that exhibits virtually every failing that OVERCOMING LAW identifies in other authors. Consider Posner's trenchant critique of an implicit premise of much legal scholarship, "that constitutional law should be considered a single specialty, so that a John Ely is presumed to be able to speak knowledgeably about the social treatment of aliens and of illegitimate children" (207). There is much to this claim. Indeed, Ely (1991, 838) himself has commented on the willingness of law professors to pose as "an expert on any subject on which [they] took two or more courses in college." Still, Posner's criticism of Ely as claiming more authority than any scholar seems bizarre given Posner's implicit claim that he has Harvard University Press publishable comments on subjects ranging from the poetry of Wallace Stevens to the comparative sexual strategies of male and female homosexuals! Virtually every chapter in OVERCOMING LAW contains at least one pseudo-empirical claim of the sort OVERCOMING LAW rightfully condemns in other works. For example, without citing any evidence Posner suggests that "the Socratic method is endangered in part because . . . minority students less qualified on average than the law school's nonminority students [are] more likely to be embarrassed by the `cold call' method of Socratic teaching" (82). One wonders whether some critical race theorist believes that law schools are abandoning the Socratic method (if they are) precisely because minority students are more verbally adept than nonminority students so written tests better maintain white supremacy. Both claims seem intellectually irresponsible in the absence of any empirical study, but if Posner claims a license to make the former claim, he is in a poor position to criticize those theorists who make claims similar to the latter. Indeed, Posner is not above making the formalist claims he associates with the worst forms of legal reasoning. When criticizing Drucilla Cornell's attack on employment at will, Posner asserts that "another objection to entitling a person to demand a reason for being fired is that it logically entails giving the employer the right to demand of the employee a reason for quitting" (306). This principle of entailment can be found in no logical or mathematical treatise. Nor is it historically true. As Professor Karen Orren (1991) demonstrates, employers have frequently enjoyed rights that have been denied their employees. Most significantly, a pragmatist would want to know something of economic conditions before deciding whether to adopt Posner's principle of rights transitivity. Perhaps employers enjoy some other right that employees lack. Perhaps employers have a significant power advantage that justifies giving employees special rights. Only when we investigate the actual balance of power between employees and employers can we determine whether, if we give employees the right to demand a reason for being fired, we should give employees the right to demand a reason for leaving employment. Finally, some passages in OVERCOMING LAW suggest that Posner may not fully understand the economic models he claims are central for pragmatic analysis. Consider his claim that "a theory of human sexuality that stresses male power and violence is a rival hypothesis to the economic one" (355) Yet, "if economics imagines the individual . . . as one who bases decisions . . . on the costs to be incurred and the benefits to be reaped from alternative courses of action that remain open," (16), then the radical feminist claim that women are subversive to avoid male violence is not a "rival hypothesis to the economic one," but a rival economic hypothesis. Indeed, once one recognizes, as Posner cheerfully does, that there can be nonpecuniary costs and benefits, then economics standing alone cannot yield any hypotheses because the anything can be a cost or benefit (consider my promise/threat to place a chocolate sundae in front of you). Thus, pragmatists cannot predict, as Posner attempts to do (537-38), the consequences of the actual malice rule on newspaper publishing until they empirically identify what ends the paper is seeking and what resources that paper has (as well as the ends and resources of other relevant actors). That more space in this review has been devoted to critique than compliment should not be understood as indicating in anyway that OVERCOMING LAW is an unimportant, deeply flawed book. Rather, as noted earlier, the work is both a terrific read and a major contribution to legal scholarship. Posner might benefit, however, by recognizing that many of the problems he finds in the work of others also infect his scholarship. Perhaps he might come to the conclusion that there is something valuable in having very intelligent persons speculate on the consequences of legal rules, even if those speculations are not based on a full scientific study. Given that no reader is likely to explore in detail all the subjects Posner considers, OVERCOMING LAW is an excellent economical introduction to how a pragmatic approach might improve our lives and laws. References: Ely, John Hart. 1991. "Another Such Victory: Constitutional Theory and Practice in a World Where Courts are no Different from Legislatures." VIRGINIA LAW REVIEW 77:833-79 Orren, Karen, 1991. BELATED FEUDALISM: LABOR, THE LAW, AND LIBERAL DEVELOPMENT IN THE UNITED STATES. Cambridge: Cambridge University Press.
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Product Details

  • ISBN-13: 9780674649262
  • Publisher: Harvard University Press
  • Publication date: 10/1/1996
  • Edition description: Reprint
  • Pages: 612
  • Sales rank: 681,145
  • Product dimensions: 9.14 (w) x 10.88 (h) x 1.55 (d)

Meet the Author

Richard A. Posner is Circuit Judge, the United States Court of Appeals for the Seventh Circuit, and a senior lecturer at the University of Chicago Law School.
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Table of Contents

Preface

Introduction Pragmatism, Economics, Liberalism

Part One The Profession

1. The Material Basis of Jurisprudence

2. The Triumphs and Travails of Legal Scholarship

3. What Do Judges Maximize?

4. The Profession in Crisis: Germany and Britain

Part Two Constitutional Theory

5. Legal Reasoning from the Top Down and from the Bottom Up

6. Have We Constitutional Theory?

7. Legal Positivism without Positive Law

8. What Am I? A Potted Plant?

9. Bork and Beethoven

Part Three Variety and Ideology in Legal Theory

10. The First Neoconservative

11. The Left-Wing History of American Legal Thought

12. Pragmatic or Utopian?

13. Hegel and Employment at Will

14. Postmodern Medieval Iceland

Part Four Of Gender and Race

15. Ms. Aristotle

16. Biology, Economics, and the Radical Feminist Critique of Sex and Reason

17. Obsessed with Pornography

18. Nuance, Narrative, and Empathy in Critical Race Theory

Part Five Philosophical and Economic Perspectives

19. So What Has Pragmatism to Offer Law?

20. Ronald Coase and Methodology

21. The New Institutional Economics Meets Law and Economics

22. What Are Philosophers Good For?

Part Six At the Frontier

23. Law and Literature Revisited

24. Rhetoric, Legal Advocacy, and Legal Reasoning

25. The Legal Protection of the Face We Present to the World

26. Economics and the Social Construction of Homosexuality

Credits

Index

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