This fine book amplifies and applies the pragmatic theories which Posner -- a founder of the law and economics movement and currently a federal appellate judge -- first propounded in The Problems of Jurisprudence. Posner argues that a fusion of liberalism (a la Mill), economics and pragmatism "can transform legal theory" (p. 29). He supports this thesis both by applying his pragmatic approach to analyze specific issues, and by using it to critique the legal analysis of dozens of other scholars.
The original applications are not nearly as successful as Posner's critique of other legal scholars which makes up the bulk of the book. For example, Posner's behavioral analysis of homosexuals (chapter 26) and judges (chapter 3) seem inconsistent with his own definition of pragmatism, particularly his claim that the pragmatist is "skeptical about claims that we can have justified confidence in having arrived at the final truth about anything" (p. 5). The mathematical formulas and unqualified, deductive reasoning in these chapters do not naturally admit skepticism or pragmatic self-doubt.
The real value of the book comes, however, in Posner's powerful criticism of more than two dozen of the most influential legal scholars of the day. On the whole, the essays call on legal scholars to develop and rely on more empiricism about likely consequences of different legal rules. On this score, the bottom-up or analogic reasoning of constitutional law theorists -- which Posner claims "is not reasoning but is at best preparatory to reasoning" (178) -- is a particular focus of attack.
But the essays also display great humanity. For example, in reviewing a book analyzing the eager complicity of German courts during the Nazi period, Posner writes: "[These judges] repeatedly rejected positivism, and did so with a brutal forthrightness that should make our judicial activists, realists, utilitarians, and pragmatists squirm. (I am one of those pragmatists, and I'm squirming)." (155) He later draws even more specific implications for our own criminal jurisprudence:
Our retention, indeed our expanding use, of capital punishments (many for intrinsically minor, esoteric, archaic, or victimless offenses), our adoption of pretrial detention, as a result of which some criminal defendants languish in jail for years awaiting trial, and our enormous prison and jail population, which has now passed the one-million mark, mark us as the most penal of civilized nations. This is a disturbing state of affairs -- justifiable perhaps, remote from Nazi justice, but problematic all the same. (157)
Posner's unease even leads him to question, at least implicitly, his own possible over-reliance on law and economic analysis: "[J]udges on the one hand should not be eager enlisters in popular movements, but on the other hand should not allow themselves to become so immersed in professional culture that they are oblivious to the human consequences of their decisions." (158).
The book also demonstrates that Posner has developed formidable rhetorical skills. Not only is he a masterful and lucid essayist, but he now is willing to analyze and even deploy some of the verbal tropes of his own critics. For example in reviewing Patricia William's analysis of the Baby M case, Posner notes "Mrs. Stern [the wife in the infertile couple] is made invisible." (374)
I was slightly disappointed that the original analysis of policy issues was not as successful as Posner's wide-ranging criticism of others. But attempting to provide a more unified structure would be somewhat inconsistent with the pragmatist thrust of the book itself. While the book claims an overarching thesis, pragmatists by their very nature are doomed to be foxes instead of hedgehogs. Posner at times still reverts to dry, reductive analysis, but his prose on the whole display a new-found confidence and spirit. The specter of a sitting federal judge speaking so freely about "overcoming law" and proposing the necessity and appropriateness of judicial activism is itself jarring.
It is somewhat ironic that Posner has devoted so much of his scholarship to studying the allocation of scarce resources, because Posner himself seems to have no capacity constraints. One can only be in awe at the sheer volume of his work and at its breadth and quality. His critics persist in claiming that Posner is only capable of spinning out unworldly and reductive theories, but the essays in this book amply demonstrate that he has become a persuasive rhetorician who can illuminate vast areas of the legal landscape with pragmatic reason and compassion.
IAN AYRES
Yale Law School