Reflections on Posner’s "Reflections on Judging"

Jimmy Robertson

Article by Jimmy Robertson Featured Author


I first heard of Richard Posner in the Fall of 1962. “Last Spring a guy named Posner tied Brandeis for the highest grades in history!”

No transcripts produced, nor secondary authority. Just a moment in the shock and awe of that first month as a 1L at the Harvard Law School. Never mind the apples to apples problem of comparing the grades of Louis D. Brandeis, Class of 1877, with those of Richard A. Posner, Class of 1962.

I recalled that ‘62 moment a decade later when those practical social scientists called economists started talking to lawyers. And to judges, sometimes the least practical of persons. Law and Economics had been born.

Richard Posner put a big foot in both camps, linked in the public mind with Ronald Coase, George Stigler and Aaron Director (24) (the first two Nobel laureates, while Director was merely famous and highly influential) in economics; also an intellectual descendent of Brandeis, Holmes, and more immediately Learned Hand and Henry Friendly, and other luminaries in the law.

Posner’s writings in the ‘70s left no doubt he “was under the influence of Chicago-style free market economics.” (26)1 His Economic Analysis of Law (1972) was a watershed event. The day had passed when only tax and antitrust lawyers needed the basics and tools of economics.

Soon, many law schools had L & E programs. Bill Page, now at the University of Florida, had joined the faculty at Mississippi College School of Law. Gary Myers came to Ole Miss. He is now Dean of the University of Missouri School of Law.

The burden of production and persuasion had shifted to those who argued that the law should tolerate (or ignore altogether) excessive transaction costs, social costs and other inefficiencies in order to secure more perfect due process, equal protection and justice generally, much less to do equity.

Richard Posner was the Force and the Face of Law and Economics.

The Poster Child For The Reagan Reformation

Within days after the 1980 election, the new Reagan administration let it be known that and how it planned to reform the federal judiciary. Richard Posner became the poster child for that transformative mission. “I had enthusiastically voted for Reagan.” (26)

The Economics of Justice (1981) had just hit the bookstores. “Posner has an apparently willful coldness in assessing, among other things, the sometimes forbidding consequences of his own theories,” according to one reviewer.2

On Dec. 1, 1981, Judge Posner took the oath of office and his seat on the Seventh Circuit (Chicago). I remembered that ‘62 moment. I felt an unease. A few more Posner-types on the federal appellate bench, and even the post-Warren era would be at an end.

Given Gregg v. Georgia, 428 U.S. 153 (1976), all it would take was one weighty study, full of algorithms and regression analyses, suggesting that at some point in the past execution within a year of sentence statistically significantly reduced the murder rate, and habeas corpus and other post-conviction inefficiencies would be out the window.

The Posner problem was and has always been that informed, fair-minded and candid persons have to concede “that his ideas are often very persuasive.” 3 I read Posner. I was soon hooked, my misgivings and disagreements notwithstanding.

An English Major, Too

A funny thing happens to a person who has been a specialist in this field or that, when suddenly he becomes an appellate judge and starts drinking from a fire hydrant that produces cases that involve every kind of human aspiration, fear, failing and practical problem within the jurisdiction.

Soon it became clear that the Richard Posner who may or may not have tied Brandeis at Harvard Law was consuming far more than the fire hydrant delivered, and producing more than just hard edged judicial opinions. He seemingly wrote a book a year, in time publishing, inter alia, The Economic Structure of Tort Law (w/Landes, 1987); Sex And Reason, (1992) to The Economic Structure of Intellectual Property Law (2003), Not A Suicide Pact: The Constitution In A Time Of National Emergency (2006), and The Crisis Of Capitalist Democracy (2010).

In the mid-1980s, Posner started remembering that he was an English major in college; hence, Law and Literature (3 eds. since 1988). And in every book since. “I majored in English at Yale.” (9, 19) A backhand way of reminding us that he is largely self-taught in Economics!

The Essential Holmes (1992) is a wonderful compendium of the wisdom and words of our wisest judge. Cardozo, A Study In Reputation (1990) is less memorable.

Oh, yes, Judge Posner not only pulled his oar on the Seventh Circuit. As a rookie judge, he famously infuriated his new colleagues by volunteering to take on extra case assignments to help the Court with its backlog.

Economic Analysis of Law, now in its 8th edition (2011), and exceeding 1000 pages, sustains Posner’s preeminence in the field he mid-wifed 40 years ago. Throughout he has remained a Lecturer in Law at University of Chicago School of Law.

And Now, Reflections on Judging

Thirty plus years into his judicial career, Richard Posner has now given us his Reflections On Judging (2013). Reading Posner, I always sense that “this book needed one more good edit.” Reflections is no different.

Brandeis may well have been a “Thayerian Justice,” but he was not “on the Lochner Court” (173) with Holmes in 1905, as Posner well knows. [I know; picky, picky] The law in general and federal courts in particular may well be stumbling in the wake of “rising complexity,” (1) but that is hardly a thesis that brings coherence to Reflections, which serves up quite a potpourri.

And a useful potpourri it is, if we leave it at that. For example, Posner offers a savage attack on the Blue Book. Judge Posner has never seemed squeamish about the death penalty, and he makes it quite clear that the current stewards of the 511 page Blue Book should be hanged, resurrected and flogged. (96–104) [Tee, hee! I love it!] And those responsible for today’s Chicago Manual Of Style should suffer a similar fate. (101) Still, these are best left a free standing topic.

He spends many pages debating Justice Antonin Scalia and co-author Bryan Garner over formalism and textualism vs. realist and pragmatic judging. A worthwhile topic, but it requires that I read carefully Scalia and Garner’s Reading Law (2013). I suspect Posner is exaggerating Scalia, if not caricaturing him, as lawyers often do when speaking of courtroom rivals.

Richard Posner Makes Real Readers Think

Reading Posner makes me think. He never fails to make me doubt some pearl or approach of which I have long been sure. I recall a Posnerian influence on my concurring opinion in Attorney M v. Mississippi Bar, 621 So.2d 220, 228–29 (Miss. 1992), an objective, no nonsense approach to the ethics vel non of lawyers taping interviews with witnesses. I doubt I would have written that had Posner not taught me how to think.

The same of my concurrences in Leatherwood v. State, 548 So.2d 389, 403–06 (Miss, 1989) (the death penalty never fits the crime of non-fatal rape, even of a child), and in Billiot v. State, 478 So.2d 1043, 1047–49 (Miss. 1985) (the law’s approach to execution of the insane is itself insane); and Groseclose v. State, 440 So.2d 297, 302–06 (Miss. 1983) (mental illness of the accused is relevant to sentencing, custody and treatment, not legalistic guilt or innocence).

Of course, Posner bears no responsibility for the substance of my views, only for exposing me to a no nonsense way of thinking about hot potato issues.

Footnote 3 (an economics approach to negligence) in Maryland Casualty Co. v. City of Jackson, 493 So.2d 955, 960 (Miss. 1986) came from reading Posner. In a prior life, I often cited his work, e.g., McGowan v. Miss O & G Board, 604 So.2d 312, 316 fn. 3 (Miss. 1992); UHS-Qualicare v. Gulf Coast Comm. Hosp., 525 So.2d 746, 755, 757 (Miss. 1987), as did others, e.g., Andrew Jackson Life Ins. Co. v. Williams, 566 So.2d 1172, 1174 fn. 4, 1179 fn. 9 (Miss. 1990) (Prather, J.).

More recently, Judge James D. Maxwell of the Mississippi Court of Appeals quoted Judge Posner’s take on Fed.R.Evid. 403, concurring in James v. State, 124 So.3d 693, 703 (¶33) (Miss.App. 2013).

Posner Style Pragmatism Includes the Internet

Reflections’ most important contribution is Judge Posner’s continued elaboration of his pragmatic approach to judging, sometimes realist judging. He first challenged judges with such views a generation ago — “the brand of pragmatism that I like emphasizes the scientific virtues (open-minded, no-nonsense inquiry)” (6) — in The Problems of Jurisprudence 28 (1990).

Then came Overcoming Law (1995), The Problematics of Moral and Legal Theory (1999), Law, Pragmatism and Democracy (2003), and How Judges Think (2008).

The indispensable vehicle for pragmatic judging today? The Internet, of course, at least in substantial part. It is hard to overemphasize the importance of Reflections’ discussion of “Internet Research by Judges,” (134–43) though I wish it had been revised and extended; it so badly needs “one more good edit”.

In Reflections, Judge Posner discusses several cases in which Internet research enriched the Court’s understanding of the circumstances and context. (134–42) I note only one.

Gilles v. Blanchard, 477 F.3d 466 (7th Cir. 2007) was a free speech case in a college setting, Vincennes University. None of the three judges on the panel was from Indiana and none knew anything about Vincennes University (139), which lies near the Wabash River in Southwest Indiana.

Judge Posner searched the Web for Vincennes University and insists his “gleanings … enriched the opinion,” (139), though “[n]one of my gleanings from the Web influenced our decision.” (139)

Judge Posner scoffs at appellate judges’ “traditional reluctance to ‘go outside the record.’” (143) “If judges lead the way [in Internet use], lawyers will follow, however, reluctantly, and the knowledge base of appellate adjudication will expand.” (143)

The Posnerian Imperative the Judges Understand the Facts

Appellate judges often act in ignorance of the facts, according to Judge Posner, that is. In tough cases, many judges don’t even understand what facts they need for a good decision.4

Think, conceptually, if pragmatically — but not formalistically — of the three step process that Miss. R. Evid. 702 mandates as the route to reliable expert opinions. Reliable judicial opinions require running the same three step gauntlet.5 According to Posner, today’s appellate judges founder at step one: the facts, though not just the evidentiary facts.

“Judicial knowledge deficits are great” (79) most particularly when it comes to “real world activities that give rise to … litigation.” (80) Most appellate judges “can puzzle out a legal doctrine but, without understanding the activity to which the doctrine is to be applied, can’t produce reliable reality-based decisions.” (80)

Early on, Posner challenges judges to be realist judges and have “a much greater interest in fact[s] … than what a judge can glean from a trial transcript.” (6) The process of appellate adjudication has its equivalent to Fed. R. [Miss. R.] Evid. 703, the second sentence of which begins “If of a type that should reasonably be relied upon …”

Reflecting on Reflections yields a powerful insight embedded in that sentence. The courts should be open to any process “that should reasonably be relied upon by experts in the particular field in forming opinions or inferences upon the subject.”

Today, appellate adjudication just may be the only particular field in which experts do not rely heavily on the Internet in forming opinions or inferences on the subject under scrutiny!

No doubt under the Posner influence, I have long thought “we enhance the chance the law will well play its instrumental role when and to the extent that we relate it to, and premise it upon the empirical and social realities of the phenomena [the law] seek[s] to regulate. Those phenomena are natural; they are behavioral; and they are economic.” 6

And never has judicial understanding of those empirical and social realities been more accessible than today and through the Internet!

Posner’s point gets its punch when we recognize that “a judge’s inescapable duty is to decide.” (115) Or as the late Justice Armis Hawkins put it, “[w]hen we have a case before us in which we have the lawful authority to decide [subject matter jurisdiction], we have no authority not to decide it.” 7

A Reflections reviewer adds, “Unlike the rest of us, judges must make decisions that enforce their understanding — or misunderstanding —  … onto millions.” 8

The Consequences of Judicial Action

Posner admires judges who emphasize “the consequences of judicial rulings … consider[ing] systemic as well as case-specific consequences.” (5) He abhors what he calls “shortsighted justice — justice responsive only to the ‘equities’ of the particular case.” (5)

A case in point from my distant past. Because of Wilson v. Gamble, 177 So. 363 (Miss. 1937), I was born in Greenwood, Mississippi, some 55 miles from where my parents lived, rather than at the King’s Daughters Hospital, only 11 blocks from our home in Greenville.

Dr. Hugh Gamble won his case. Dr. R. E. Wilson, a pediatrician and his ob/gyn colleague, Dr. John F. Lucas, had to leave Greenville and relocate in Greenwood. Family lore is that my mother was furious — she was not about to quit Dr. Lucas — and made a mad 95 mph dash across Highway 82 on a hot July afternoon in 1940 so that I could make my grand entrance with the assistance of Dr. Lucas, and not some curmudgeon that Dr. Gamble’s clinic was trying to protect and foist upon her.

I have read Wilson many times. One point always stands out. Nothing suggests my interests were considered.

To be sure, Wilson exposed both my mother and me to not insignificant risks. As I grew up, I became aware of contemporaries and their mothers who had been similarly situated (in addition to my younger brother and my two younger sisters), and whose interests were similarly ignored.

What Would Wilson Have Done With What Was New?

Wilson dispatches its central issue (and my interests) in a single paragraph.9 “The authorities … are legion, and it would be impossible for anything new to be added … ” 10

But there was something new. Concern over the consequences of non-compete clauses was reflected on the agenda at the American Medical Association. In 1933, the AMA House of Delegates approved a Judicial Council resolution which declared that contractual provisions that interfered with reasonable competition among physicians or “the free choice of a physician” were unethical.11

Neither the Court nor counsel may be faulted for not knowing of this, of which yours truly learned via the Lexis discovery of a law review article a few years ago. Today, counsel would do an appropriate Internet search of AMA policies and pronouncements.

It is less clear — what to Judge Posner is quite clear — that the court would understand its duty to google the AMA and related websites, to see what (else) is there, and to use appropriately what may be found, whether the lawyers cited it or not!

Rooting Out the Facts that Matter

“The limitation on time [five years] and space [a five mile radius] is undoubtedly here reasonable … ” 12 Wilson says this at a level of generality and with glibness.

The Posnerian point is this. Superficially, Drs. Wilson and Lucas’ five mile radius area exclusion might not seem unreasonable. Nothing in Wilson explains that in the mid-1930s there were no viable alternative locations for a combination ob/gyn and pediatrics clinic closer than Greenwood, then some 55 miles away, city limits to city limits.

A five mile radius legal exclusion was in practical effect a 50 mile radius exclusion. I know this because I grew up in Greenville and practiced law in Delta courthouses for 14 years. But there was no Internet in the mid-1930s. Justice Sydney Smith, who wrote Wilson, should have had a clue of these important background facts; he haled from Holmes County.

Having practiced law in Lexington, Justice Smith likely realized that people in his rural area would benefit from access to the services of Drs. Wilson and Lucas, if they had to move to Greenwood. Nothing in Wilson lets on either way.

Whether it be in the record or not, there can be no doubt that Judge Richard Posner would have insisted that the Wilson Court look out the window. Or today log on to the Internet. And learn about Leland eight miles to the East, but hardly an option. And the same for Indianola, Hollandale, Cleveland and others.

“[O]penness to facts not limited to those found in judicial records is what I want to stress.” (6)

Don’t Know Much About Monopolies

On another outcome determinative point in that long outcome determinative Wilson paragraph, Justice Smith simply says “the evidence discloses that … the number of physicians in Greenville is amply sufficient … and that no monopoly was either contemplated by the contracts or will result from their enforcement.” 13

No clue offered that Justice Smith or anyone on the Wilson Court knew the practical economics of monopolies, e.g., how to define a market (product, service or territorial) or what market power is, or what barriers to entry are and how they function in “the activity” implicated in the particular case. Or had made an effort to learn about the practical economics of monopolies. Or whether and to what extent these notions apply and are measured in a such a small economy.

Just one dimension of the “real world activities that [gave] rise to … litigation.” (80)

Nothing in Wilson suggests whether the Justices had a clue regarding the sufficiency of ob/gyn services in Greenville, or what it might take to give Dr. Gamble’s clinic a practical monopoly in that service market, or what the Wilson decision was doing to physician-patient relationships, or the patient’s right to choose his or her physician, and have that choice respected in the practical world.

Or had made an effort to look out the window and see what could be learned on these important points on which the record was silent.

The Posner spell, of course, has taught me that my personal interests in such a matter are not nearly the trump card I once thought. Still, the public interest — and the judicial oath! — demanded that all relevant interests and factors be searched out — whether in the record or not — and understood, considered, weighed and balanced with competing factors, and in an objective, practical and no nonsense way.

And only then that the Supreme Court of Mississippi may with legitimacy tell affected persons and interests whether Dr. Lucas would have to leave Greenville, if he wished to continue to practice medicine over the next five years.

“The consequences of judicial action are often difficult to predict. But the attention to consequence has a disciplinary force, slowing the rush to an emotional judgment.” (122) Judges should “investigate consequences systematically.” (122) But how do judges do that? And what of appellate judges who do not consider it at all self-evident that they should do that?

Economic impacts are not only important, but inevitable, as Posner would be the first to say. Appellate court decisions and the precedents they set often impose great social costs. That’s what tort reform was all about, however blunt the ultimate (and still evolving) instrument.

Regulators are told to prepare economic impact statements before they promulgate new rules and regulations. Miss. Code §25–43-3.105. Why not the appellate courts (who make law in spite of themselves)? On what grounds do appellate courts willfully blind themselves to the broader societal consequences of their actions?

And if they remove their blinders, as Judge Posner would have them do, how do appellate courts access reliable economic analyses and chose among those that conflict or differ?

The Inevitability of Judicial Legislation

Wilson was and remains judicial legislation; make no mistake about it. Wilson is still quoted and applied today.14

And so a question for those who believe so fervently that judges should not legislate. What is the Common Law except a lot of judge-made law, augmented by the judge-made rule of precedent?

What is the so-called canon of construction that “statues in derogation of common law shall be strictly construed” other that the ultimate instance of anti-democratic judicial arrogance, grounded in the prejudice that judges make much better laws than do legislatures?

In 1978, Justice Robert Sugg devastated this derogation myth,15 after which one would have thought a judge would be embarrassed to take it seriously, at least in public. Otherwise sensible judges still cite it,16 suggesting that judicially created nonsense is more difficult to inter than the political variety.

Judge Posner reminds us that, “Judges tend not to be candid about how they decide cases. They like to say they just apply the law — given to them, not created by them — to the facts. They say this to deflect criticism and hostility … that they are … legislating.” (106)

Like it or not, judges are “sometimes compelled by circumstance to legislate from the bench.” (106) And it will be ever thus, at least until the judge made rule of precedent is repealed. Judicial legislation is particularly prevalent and important in state courts of last resort with their plenary appellate jurisdiction.

Recall how well Holmes put the point in 1881, in an era of few statutes and when the Common Law reigned.

“[I]n substance the growth of the law is legislative. And this in a deeper sense than that what the courts declare to have always been the law is in fact new. It is legislative in its grounds. The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. I mean, of course, considerations of what is expedient for the community concerned.”
—Holmes, The Common Law 35 (1881)

Holmes saw quite desirable “a more conscious recognition of the legislative function of the courts.” Id., at 36. Posner adds, “Judges’ beliefs that they don’t make law dulls their critical faculties.” (122)

The Inevitable Judicial Reliance on Legislative Facts

It is hardly surprising that Judge Posner presents matter-of-factly his view of legislative facts. “These are facts that bear on the formulation or interpretation of legal doctrines. Judges are permitted to rely on such facts without evidence and without having to satisfy the conditions for taking judicial notice of a fact,” (137) referring to Fed R Evid [and Miss R Evid] 201.

Astute appellate courts across the country have long accepted the practice of drawing on legislative facts as an important part of the process of appellate adjudication. This state is no exception.17

Considering legislative facts is “an inherent part of the judicial process,” 18 because judicial legislation is an inherent part of the judicial process.

Even more readily, courts resort to legislative facts on judicial review of agency action, viz., “The reviewing court is charged to study the [administrative] record and the legislative facts to which the challenged order points and divine a rational basis on which the administrator may have acted.” 19

As aged and honored as is the “Brandeis brief” and the correlative practice of judicial resort to legislative facts, there remain those who react with horror that the court is “going outside the record.” The Supreme Court of Mississippi has formally approved just that “as an inherent part of the judicial process,” 20 but how many know it, and understand?

This view comes from Fed. R. Evid. 201 which has long carried a comment explaining, that the appropriate

view which should govern judicial access to legislative facts … renders inappropriate any limitation in the form of indisputability, any formal requirements of notice other than those already inherent in affording opportunity to be heard and exchanging briefs, and any requirement of formal findings at any level. It should, however, leave open the possibility of introducing evidence through regular channels in appropriate situations. See Borden’s Farm Products Co. v. Baldwin, 293 U. S. 194, 55 S.Ct. 187, 79 L.Ed. 281 (1934), where the case was remanded for the taking of evidence as to the economic conditions and trade practices underlying the New York Milk Control Law.

“Regular channels” today mean both Federal and Mississippi versions of Rule 702, authorizing experts passing muster under the reliability criteria of the rule to “testify in the form of an opinion or otherwise.” [emphasis added]

An expert may “testify by giving an opinion or any other form of testimony, such as an exposition,” 22 a narrative22 or background information or principles.23 By analogy to Rule 703, “regular channels” should also include the Internet. See above.

Still, the appellate court — particularly the court of last resort — should accept its opportunity and duty to scrutinize with a grain of salt the parties’ self-interested use of regular channels or the Brandeis brief.

Justice Hawkins was within his prerogatives (and, arguably, his duty as well) when he read and cited medical texts not cited by the parties or their medical experts in Samuels, 608 So.2d at 1182, 1184. Justice Hawkins could have discharged his duty far more efficiently and reliably if the Internet had been available to him.

But there is more. As with Wilson there are so often non-represented third party and public interests whose only protection and hope is that appellate judges will look out the window, and to so much more than just “the ‘equities’ of the particular case.” (5) And because those unrepresented third party and public interests will suffer consequences and effects no matter how desperately the judges might try to limit their focus to the ‘equities’ of the particular case.” (5)

One familiar — and at times fatal — fallacy of the adversary system is that there are only two points of view on how the defective widget should have been made. Judgment calls by counsel as to what in the interests of their clients the court should and should not be told only complicate the fallacy. Another reason we so badly need good Posnerian pragmatic judging in our courts.

I could go on.

Sober Notes for the Path Ahead

A half century ago, Professor Kenneth Culp Davis recognized what should be obvious.

“[J]udge-made law would stop growing if judges, in thinking about questions of law and policy, were forbidden to take into account the facts they believe, as distinguished from facts which are ‘clearly . . . within the domain of the indisputable.’ Facts most needed in thinking about difficult problems of law and policy have a way of being outside the domain of the clearly indisputable.”

Davis, A System of Judicial Notice Based on Fairness and Convenience, 55 Harv.L.Rev. 364 (1942) and in Perspectives Of Law 82 (1964). Comment (a) to Miss.R.Evid. 201 invokes Prof. Davis’ “now famous article.”

Thirty years ago, the Fifth Circuit explained the use of legislative facts in consolidated cases arising in this state. Dunagin v. City of Oxford, 718 F.2d 738, 748–49 fn. 8 (5th Cir. en banc 1983). The Court considered “question[s] of social [and scientific] factors and happenings which may submit to some partial empirical solution but is likely to remain subject to opinion and reasoning. [citation omitted] That reasoning is the responsibility of legislators and judges, assisted by scholars and social scientists.” Dunagin, at 748, fn. 8. In more traditional hard[er] science” contexts, “unscientific values, interests and beliefs” are often “transcendent.” Dunagin, at 749, fn. 8.

Those who would challenge the legitimacy of judicial resort to legislative facts must confront the alternative. Posner suggests the reason the U. S. Supreme Court is perceived as a political court “derives from the fact that the Justices form confident views without any empirical basis for them.” (83) Decisions are “shaped by ideology (including religion), temperament, race and sex, upbringing, and other personal characteristics that differ across judges and Justices.” (83) “Fact-free constitutional adjudication is abetted by constitutional lawyers (prominently including professors of constitutional law), who ‘know little about their proper subject matter — a complex of political, social and economic phenomena.’” 24 (83)

But is it enough to ground major constitutional doctrine in the famous footnote 11 in Brown v. Board of Education, 347 U. S. 483, 494 (1954)? And set the stage where several generations later more new and more controversial learning may by a 5 to 4 vote be seen to ground new and different constitutional doctrine?

A Postscript

This essay has been a once over lightly of my take on a central dimension of Posnerian realist or pragmatic judging. In Wilson and elsewhere, I have added a local and personal flavor. The number of cases needing the benefits of such judging is far greater than even soft textualists and formalists like yours truly dare let on.25 There is much more in Reflections worth reading and thinking about. And applying to day-to-day life within the Mississippi judiciary, and not just its federal variety.

More valuable than any particular point, however, is the cold, dispassionate, no nonsense reasoning Richard Posner (usually) brings to bear, and how it steels the open mind to take with more than a grain of salt the passionate polemics of both the legal Right and the Left. And of those fearful judges who dare not open their minds to new and available paths to a higher quality of justice. All too many are content to see the law as O’Neill saw life when he had semi-autobiographical Jim Tyrone insist that “there is no present or future, only the past, happening over and over again, now.” 26

I’m not sure how one would know whether Posner was as good as Brandeis at Harvard Law School, or that it matters. I’m pretty sure the Reagan White House had no clue what a bully pulpit it was giving Richard Posner back in 1981. If only other appellate judges taking the bench since were so open to thinking and rethinking, though the fire hydrants they drink from serve up ever “rising complexity.” (1)

If only we had a law that the foremost qualification for appellate judicial office was that the nominee have been an English major.

I am sure the only excuse one might have for not reading Reflections and Posner’s other books is that he writes them faster than most of us can read. But, then, as The New York Times reviewer put it, a part of the Posner problem is “that Posner’s best is significantly above the mean.” 27

That moment in the Fall of ‘62 has proved prophetic.

  1. Numbers in parentheses refer to the page in Posner’s Reflections On Judging (1913) where the quote may be found.
  2. Schmalbeck, The Justice of Economics: An Analysis of Wealth Maximization As A Normative Goal, 83 Colum. L. Rev. 488, 489 (1983).
  3. Schmalbeck, id., at 490.
  4. Here and below, I join Judge Posner in making clear we are not talking about the “many cases [that] are appealed that can be and are resolved by conventional legal analysis,” (106) “cases [that] can be decided satisfactorily by straightforward application of known and definite law to the facts of the case.” (107)
  5. See Boardman v. USAA, 470 So.2d 1024, 1029–30 (Miss. 1988).
  6. Robertson, The Law Of Business Torts In Mississippi, 15 M. C. Law Rev. 13, 40 (1994).
  7. Shewbrooks v. A. C. & S., Inc., 529 So.2d 557, 560–61 (Miss. 1988).
  8. Kenji Yoshino, “Holding Court,” The New York Times (Nov. 8, 2013);
  9. Wilson, 177 So. at 365–66.
  10. Wilson, 177 So. at 365.
  11. AMA, Digest Of Official Actions 1846–1958 at 123 (1959).
  12. Wilson, 177 So. at 366.
  13. Wilson, 177 So. at 366.
  14. See, e. g., Timber Lake Foods, Inc. v. Estess, 72 So.3d 521, 525 (¶13) (Miss. Ct. App. 2011); Raines v. Bottrell Insurance Agency, 992 So.2d 642, 645 (¶9) (Miss. Ct. App. 2008).
  15. McCluskey v. Thompson, 363 So.2d 256, 262–64 (Miss. 1978).
  16. See, e.g., Howard v. Harper, 947 So.2d 854, 859 (¶15) (Miss. 2006); Warren v. Glascoe, 880 So.2d 1034, 1037 (¶11) (Miss. 2004).
  17. Samuels v. Mladineo, 608 So.2d 1170, 1183–86 (Miss. 1992).
  18. Comment (a) to Miss. R. Evid. 201.
  19. Harrison County Bd. Of Sups. v. Carlo Corp., 833 So.2d 581, 583 (¶6) (Miss. 2002) (quoting earlier cases).
  20. “Adjudicative facts are easily understood; they are specific to the litigation. Legislative facts, on the other hand, are more amorphous. To determine legislative facts one must look at public policy or policies involved in judge-made law … A court’s judicial notice of legislative facts is more an inherent part of the judicial process rather than an evidentiary matter.”
  21. Official Comment to Miss. R. Evid. 702, quoted in West v. State, 553 So.2d 8, 21 (Miss. 1989).
  22. Slay v. ICGRR, 511 So.2d 875, 877 (Miss. 1987) (opinion “in narrative form”)
  23. 4 Weinstein’s Federal Evidence § 702.02[2] (2d ed. 2013).
  24. Posner is quoting from his own Overcoming Law 208 (1995).
  25. I have thought hard about these issues in days past, having learned from Judge Posner and many others. See “An Interpretive Stratagem” and “The Decline of Malice and Intent” in my The Law Of Business Torts In Mississippi, 15 M. C. Law Rev. 13, 24–57 (1994). Rereading those pages, in the light of Reflections and much more, I’m sure I could put the points better today, twenty years later.
  26. Eugene O’Neill, Moon For The Misbegotten, Act III, page 77 (1945).
  27. Kenji Yoshino, “Holding Court,” The New York Times (Nov. 8, 2013);