Law Professors, Richard Posner

Posner And The Law Professor’s Search For Meaning

This anonymous law professor has a bone to pick with Judge Richard Posner of the Seventh Circuit.

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Judge Richard Posner (Photo by Chensiyuan via Wikimedia Commons.)

Judge Richard Posner (Photo by Chensiyuan via Wikimedia Commons.)

Dear Judge Posner,

As Above the Law has reported, you have a bone to pick with us law professors.  It seems that we are utterly useless.  You reportedly said:

I don’t doubt that law professors are frequently active outside the classroom and that their academic work sometimes addresses practical issues, but what I’d like to see is evidence of impact. Amicus briefs? Working for nonprofits? Blogging? “Speaking truth to power?” Absurd: speak all you want, professors, power doesn’t listen to the likes of you.  

That’s harsh, sir.  I mean, we can’t all be judges, right?

I’m glad you recognize that teaching is important, as you mention that law professors can sometimes be seen in a classroom.  It is their activities outside of the classroom with which you quibble.

I suppose that the thing we academics ought to be doing, dear sir, is being more like you.  As I peruse your University of Chicago bio, I’m reminded that you are also a professor.  Let me just look at your scholarly impact on Leiter’s posts.  

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Hmm… I don’t see your name there.  Maybe that’s because you are not tenured or tenure-track? I don’t know.  Now, we all recognize that you are a very influential judge, but I’m just looking for evidence of impact, sir, as you suggest.  We might have to have a discussion about how to measure scholarly impact.  Or maybe you want it to be something like this?

Regardless, we can still be like you.  Just show us how!

Perhaps you can give us some insight into writing books on practical issues.  Again, this is from your Chicago bio:

Judge Posner has written a number of books, including Economic Analysis of Law (9th ed., 2014); The Economics of Justice (1981); Law and Literature (3rd ed. 2009); The Problems of Jurisprudence (1990); Cardozo: A Study in Reputation (1990); The Essential Holmes (1992); Sex and Reason (1992); Overcoming Law (1995); The Federal Courts: Challenge and Reform (1996); Law and Legal Theory in England and America (1996); The Problematics of Moral and Legal Theory (1999); Antitrust Law (2d ed. 2001); Law, Pragmatism, and Democracy (2003); Catastrophe: Risk and Response (2004); Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (2005); How Judges Think (2008); A Failure of Capitalism: The Crisis of ’08 and the Descent into Depression (2009); The Crisis of Capitalist Democracy (2010); The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (coauthored with Lee Epstein and William M. Landes) (2013); and Reflections on Judging (2013). He also wrote books on the Clinton impeachment and Bush v. Gore and many articles in legal and economic journals and book reviews in the popular press.

That certainly is a lot of writing, Judge Posner.  And here, we see what you must mean by “practical issues,” such as “Sex and Reason” or “Law and Literature.”  Don’t get me wrong, not only are these books apparently “practical,” they are excellent reads, too!  In short, we scholars really need to write books about the things you think are practical if we want to be listened to by people like you.

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You also suggest blogging is not a good idea.  You mock it.  So I’m a little surprised that you have blogged before, Your Honor.  Of course, we’re all sad that Gary passed away.  It was a tragic loss of a great mind, and I think we can both agree it would be bad form to criticize the dead even if we disagree, right?  But how can you say blogging is a bad idea when you’ve done it?  Or maybe that’s the reason you now say it’s pointless, because yours wasn’t as successful as you’d hoped?  Mine, neither, but I’m not quite ready to give that up yet.

You also suggest that amicus briefs are apparently a waste of our time.  Well, yes, under your standards, they would most certainly be.  I couldn’t help but notice some commentary suggesting that if only you were more permissible in your leave to file them, you perhaps could have avoided being overturned.  Some of us academics have had some success in terms of swaying (other) judges with amicus briefs.  Of course, I’m not saying the whole venture isn’t getting a little out of hand.  I’m just searching for what you want us to be doing.

I think that leaves us with how to speak truth to power.  Recently, you have taken a swipe at us law professors.  By your own admission, we have no power at all!  You have also recently taken a swipe at the late Justice Scalia.  Your Honor, I’m confused.  I’m not sure what you’re doing to speak truth to power when you’ve lately spent most of your time lately taking swipes at the powerless or deceased.  (I do secretly hope that Nino, every time you speak ill of him after he passed, is somewhere haunting you, particularly around the holidays).

I write this because I worry about you, Judge Posner.  We’ve never spoken, but I did send you an article once and got a very nice form letter back!  I don’t want you to turn into the academic version of the curmudgeon neighbor, constantly yelling at the neighborhood kids (or law professors) to get off his lawn.  

Regardless, we, your loyal fans, await further (and hopefully clearer) instructions as to what we in the halls of academe should do to be useful members of society.  Of course, we will keep off your lawn.

Sincerely,

LawProfBlawg

LawProfBlawg is an anonymous professor at a top 100 law school. You can see more of his musings here and on Twitter. Email him at lawprofblawg@gmail.com.

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