Richard Posner, influential federal judge and legal scholar, dies at 87

Leader of law-and-economics movement reshaped antitrust law and federal regulation

Richard Posner, a federal appellate judge in Chicago and a leader of the law-and-economics movement, died Tuesday at age 87, according to a news release from the University of Chicago Law School, where he had been a longtime scholar.

Posner served on the Seventh U.S. Circuit Court of Appeals in Chicago from 1981 until 2017, writing thousands of opinions in cases on appeal from lower federal courts in Illinois, Indiana and Wisconsin and disregarding many of the conventions of his office in his four decades on the bench. In many ways, judging was just his day job.

He produced more than 500 scholarly articles and 50 books — about one a year — on subjects as far-flung as sex, counterterrorism and literature. He joined the University of Chicago law faculty in 1969.

Posner was a leader in the law-and-economics movement in the 1970s, urging courts to evaluate laws for their economic consequences, as well as fairness, and to fashion rulings mindful of the incentives they were creating.

The movement helped to reshape antitrust law, regulation of public utilities and common carriers, environmental regulation and the computation of damages — the amount owed — in personal-injury lawsuits, and law schools now routinely keep full-time economists on their faculty. Posner considered the movement his most important work. Few courts today, however, base their rulings explicitly on economic analysis.

Throughout much of his career, Posner was identified as a conservative. But he ridiculed the rising influence of originalism — a method of legal interpretation championed by some right-leaning jurists, most notably the late Supreme Court Justice Antonin Scalia, under which judges hew to the text of laws and the Constitution and consider their meaning at the time they were written.

“Eighteenth-century guys, however smart, could not foresee the culture, technology, etc., of the 21st century,” Posner wrote in one of his frequent columns at the online magazine Slate. “Which means that the original Constitution, the Bill of Rights, and the post-Civil War amendments (including the 14th), do not speak to today.”

Posner wrote his own opinions, as opposed to delegating the task to his clerks, as most judges do, and he did not always confine himself to the appellate judge’s role of making a legal judgment based on facts established in the court below. Once, he enlisted his staff to test a claim in a dispute before him that poultry processing workers needed as much as 15 minutes to don and doff required clothing for their jobs. His staff managed to change in an average of 110 seconds.

Posner shunned rigid judicial philosophies, especially later in his tenure. He would write what he thought the result ought to be, and then investigate whether his result was clearly prohibited by precedent or law, according to William Domnarski’s 2016 biography of the judge. In his 2013 book “Reflections on Judging,” he wrote that courts should resolve disputes “in a way that can be explained in ordinary language and justified as consistent with the expectations of normal people.”

He cultivated an outsider status, comparing his comfort in the legal profession to “an imperfectly housebroken pet” in a 2001 interview with the New Yorker. The posture lent him credibility as the federal judiciary’s critic-in-chief and occasional tormentor. “To put it bluntly, many federal appellate opinions seem to be self-indulgent displays performed with little concern for the interests and needs of the audience for the opinions,” he wrote of the work of his peers in the 1985 book “The Federal Courts: Crisis and Reform.”

Posner was cited, by name, in more judicial opinions than any of his peers. Fred Shapiro, a librarian at Yale Law School, found that Posner was also the most-cited legal scholar — by a wide margin. He could be impatient with advocates, too: when a Houston lawyer neglected a relevant case in his legal briefs, Posner compared him to an ostrich and illustrated his opinion with an image of the bird, its head buried in the sand. Below it, Posner included a clip art photo of a man in a suit with his head similarly buried.

Allen Richard Posner was born Jan. 11, 1939, in New York City. His father, a Communist Party member-turned-commercial property lender, and his mother, a feminist activist, were “limousine radicals,” Posner later recalled. When his grade-school geometry teacher fell ill, the principal asked him to teach the class temporarily, according to Domnarski’s biography; his classmates treated him as though he were a credentialed teacher.

Posner graduated from Yale College with an English major and from Harvard Law School, then clerked for Supreme Court Justice William J. Brennan. In one case, Posner misunderstood an order from Brennan and drafted an opinion coming out on the wrong side of the case. “It was so persuasive that Brennan and his colleagues signed it — making Posner possibly the only clerk in history to have reversed the Supreme Court,” David Friedman, an economics professor at Santa Clara University Law School, recalled in an anecdote reported by Newsday in 1999.

After his clerkship, Posner was assistant to Federal Trade Commissioner Philip Elman from 1963 to 1965 and then spent two years as an assistant to the solicitor general of the U.S., the government’s chief appellate lawyer. He spent a year as a professor at Stanford Law School before joining the faculty at the University of Chicago.

After retiring from the judiciary, Posner sought to help litigants who attempted to navigate the legal system without a lawyer. He founded a nonprofit organization dedicated to that cause in 2018, but it dissolved the following year. According to court documents, he was diagnosed with Alzheimer’s disease in 2018.