America’s most contentious legal reformer
January 20, 2016 6:02 PM Subscribe
Harvard Magazine profiles Judge Richard Posner (LL.B. ’62): Rhetoric and Law
Actually a decent judge who said a lot of dumb things. After a lifetime of conservative economic writing, came out for Kensyan economics after 2008 depresion.
His decisions are consistent. Its all I can ask of any judge.
posted by Ironmouth at 9:45 PM on January 20, 2016
His decisions are consistent. Its all I can ask of any judge.
posted by Ironmouth at 9:45 PM on January 20, 2016
His decisions are consistent.
Consistent? Like his ruling to allow racist voter ID laws, no problem, and then seven years later saying, "Sorry, my bad, yes they really are racist."
But sorry doesn't really help since judges don't get do-overs and meanwhile millions of peoples lives are affected. Smart judges are supposed to get it right the first time.
Or how about when he says the adversary system doesn't work and then goes on the internet -- the effing internet -- to do his own research on case facts outside of court, completely bypassing the possibility of opponents to point out that perhaps he's reading some conspiracy theory of a crazy loon in a basement.
Posner is a dangerous wacko in a robe.
posted by JackFlash at 10:23 PM on January 20, 2016 [1 favorite]
Consistent? Like his ruling to allow racist voter ID laws, no problem, and then seven years later saying, "Sorry, my bad, yes they really are racist."
But sorry doesn't really help since judges don't get do-overs and meanwhile millions of peoples lives are affected. Smart judges are supposed to get it right the first time.
Or how about when he says the adversary system doesn't work and then goes on the internet -- the effing internet -- to do his own research on case facts outside of court, completely bypassing the possibility of opponents to point out that perhaps he's reading some conspiracy theory of a crazy loon in a basement.
Posner is a dangerous wacko in a robe.
posted by JackFlash at 10:23 PM on January 20, 2016 [1 favorite]
And for a controversial figure could we have a little more substance from a post than merely a hagiographic profile from an alumni magazine!? These are nothing but PR pitches for donors.
posted by JackFlash at 10:35 PM on January 20, 2016 [2 favorites]
posted by JackFlash at 10:35 PM on January 20, 2016 [2 favorites]
The article doesn't really put any counter-arguments to Posner's instrumentalism and skepticism about rights and what he calls formalism. There are some.
posted by Aravis76 at 12:04 AM on January 21, 2016
posted by Aravis76 at 12:04 AM on January 21, 2016
You thought that article was a puff piece for Posner? Because as it went on it seemed a lot more negative than it seemed at the start, JackFlash. And everyone reads the internet these days, everyone with a brain at least, to ignore it is to ignore what's really happening in the world. Which means yes, you have to develop a bullshit filter, but none of this says that Posner doesn't have one.
posted by JHarris at 12:04 AM on January 21, 2016
posted by JHarris at 12:04 AM on January 21, 2016
Or how about when he says the adversary system doesn't work and then goes on the internet -- the effing internet -- to do his own research on case facts outside of court
That actually seems pretty consistent to me. That's pretty much what judges or magistrates in non-adversarial systems (e.g., most of the world's legal systems) do.
posted by 1adam12 at 12:14 AM on January 21, 2016 [1 favorite]
That actually seems pretty consistent to me. That's pretty much what judges or magistrates in non-adversarial systems (e.g., most of the world's legal systems) do.
posted by 1adam12 at 12:14 AM on January 21, 2016 [1 favorite]
Contrary to most other alumni magazines, the Harvard one is (pretty) independent of the university. (You'll see a fair amount of stories in it, e.g, that the official propaganda machine of the university wouldn't have written in a million years).
posted by AwkwardPause at 12:16 AM on January 21, 2016 [1 favorite]
posted by AwkwardPause at 12:16 AM on January 21, 2016 [1 favorite]
That's pretty much what judges or magistrates in non-adversarial systems do.
But that's not really relevant to what Posner ought to do, in a system designed according to adversarial norms. If he wants to campaign for a change in those norms, he can, but it's not reasonable for a judge to simply disregard them when deciding cases.
posted by Aravis76 at 4:32 AM on January 21, 2016 [1 favorite]
But that's not really relevant to what Posner ought to do, in a system designed according to adversarial norms. If he wants to campaign for a change in those norms, he can, but it's not reasonable for a judge to simply disregard them when deciding cases.
posted by Aravis76 at 4:32 AM on January 21, 2016 [1 favorite]
A judge is instead supposed to subject himself to the whims the attorneys, whatever lacks they may have, and basically let them pitch him the case? I am far from a legal expert, but it seems odd to me that a court of law would filter the wide world of experience through the presentation skills of two opposing people. I'd be interested in finding out about more about how this works, hmm.
Hey, I'm not a judge, I can Google it myself!
posted by JHarris at 5:26 AM on January 21, 2016
Hey, I'm not a judge, I can Google it myself!
posted by JHarris at 5:26 AM on January 21, 2016
A judge is supposed to obey the law and procedures that have been laid out by competent authority in his jurisdiction, yes. If he doesn't like the procedures, of course he has the right to seek changes. But it's not fair on parties to litigation for judges to treat the rules of procedure as optional extras; it means the parties and their lawyers can't decide how to act based on predictable norms and standards and instead have to rely on the whim of the particular judge. There's already too much whimsy and maverick stuff happening in many courtrooms, we don't need more of it.
posted by Aravis76 at 6:02 AM on January 21, 2016 [1 favorite]
posted by Aravis76 at 6:02 AM on January 21, 2016 [1 favorite]
He is one of the best examples of what people mean when they say there are different types of intelligence. In some ways, he's one of the most brilliant jurists alive today, but he seems unable to fully understand and internalize that legal ruling and policy impacts actual peoples' lives and doesn't seem to ever doubt his instincts or think about whether they stem from personal bias of any kind (the kind we all suffer from).
People I know who have met and worked with him have never described him personally as anything other than gracious, kind, funny, and personable - certainly not an "asshole" (especially when compared to one of his colleagues much more deserving of that title...).
posted by sallybrown at 6:55 AM on January 21, 2016 [2 favorites]
People I know who have met and worked with him have never described him personally as anything other than gracious, kind, funny, and personable - certainly not an "asshole" (especially when compared to one of his colleagues much more deserving of that title...).
posted by sallybrown at 6:55 AM on January 21, 2016 [2 favorites]
I may be alone in this, but I find a judge acting as a celebrity public intellectual to be pretty distasteful and frankly antithetical to his position on the Seventh Circuit.
This is increasingly a thing, and it makes me a little uncomfortable too. Compare Jed Rakoff, from SDNY (the USDC in NYC). He has senior status, so he could pop up anywhere, and he writes about issues that have a bearing on the kinds of cases he might become involved in. I largely agree with his positions on various reforms, like of Wall Street, but it still seems odd to me.
posted by snuffleupagus at 7:23 AM on January 21, 2016
This is increasingly a thing, and it makes me a little uncomfortable too. Compare Jed Rakoff, from SDNY (the USDC in NYC). He has senior status, so he could pop up anywhere, and he writes about issues that have a bearing on the kinds of cases he might become involved in. I largely agree with his positions on various reforms, like of Wall Street, but it still seems odd to me.
posted by snuffleupagus at 7:23 AM on January 21, 2016
Really? You think judges should just be able to add "facts" to a case at their whim? The jury is supposed to decide the facts in the case. That is why we have juries. Juries decide the facts. Who knows what stuff a judge might dig up on the internet? Facts are determined by arguing and testing those facts by opposing counsel. When a judge arbitrarily adds "facts" without them being tested, then you no longer have valid legal system.
Posner is that most dangerous type of individual, the one who thinks he is smarter than he is, that he thinks he knows more than he really does, and bases his rulings on those beliefs, without them being tested by argument.
A good example is Mitchell v. JCG Industries, in which workers at a chicken processing plant complained that the time required to get out of their protective gear before and after lunch was docked from their 30-minute lunch period without pay.
Posner ruled that the extra time was inconsequential based on a re-enactment he staged in the privacy of his own chambers using his court clerks to change clothes. This is just flat out crazy. We have no idea if this re-enactment bears any resemblance to reality because there was no opposing counsel there to challenge the "facts."
Did the clothes in the re-enactment accurately represent the actual gear workers use? Did his experiment include both men and women? Did his experiment include the time to travel between the locker room and the cafeteria and what is that distance? Did his experiment include whatever time is required for washing up after removing the protective gear before eating and then washing up/sterilizing again before putting on new protective gear after lunch? We will never know because the judge "researched" "facts" on his own.
This is why you don't allow judges to just arbitrarily add their own "facts" to a case. If there were any real justice, this judge would be thrown off the bench.
If he wants to pontificate on the pluses and minuses of established court procedures, let him do it on his own time as an academic, not on the bench with peoples' lives at stake.
posted by JackFlash at 12:42 PM on January 21, 2016 [4 favorites]
Posner is that most dangerous type of individual, the one who thinks he is smarter than he is, that he thinks he knows more than he really does, and bases his rulings on those beliefs, without them being tested by argument.
A good example is Mitchell v. JCG Industries, in which workers at a chicken processing plant complained that the time required to get out of their protective gear before and after lunch was docked from their 30-minute lunch period without pay.
Posner ruled that the extra time was inconsequential based on a re-enactment he staged in the privacy of his own chambers using his court clerks to change clothes. This is just flat out crazy. We have no idea if this re-enactment bears any resemblance to reality because there was no opposing counsel there to challenge the "facts."
Did the clothes in the re-enactment accurately represent the actual gear workers use? Did his experiment include both men and women? Did his experiment include the time to travel between the locker room and the cafeteria and what is that distance? Did his experiment include whatever time is required for washing up after removing the protective gear before eating and then washing up/sterilizing again before putting on new protective gear after lunch? We will never know because the judge "researched" "facts" on his own.
This is why you don't allow judges to just arbitrarily add their own "facts" to a case. If there were any real justice, this judge would be thrown off the bench.
If he wants to pontificate on the pluses and minuses of established court procedures, let him do it on his own time as an academic, not on the bench with peoples' lives at stake.
posted by JackFlash at 12:42 PM on January 21, 2016 [4 favorites]
I took an Economic Analysis of Law course, which used his textbook. So I wanted to clarify his position on the sentiment that Judges are supposed to get it right the first time, or the ways policy impacts actual lives.
He specifically rejects the idea that the law can get it right the first time. A landmark case might rely on an overly sympathetic defendant, which pulls the decision a certain way. That's why so much of the legal field is built on prior case law, instead of simply the strict reading of laws and statutes. Law is cumulative and continually tries to improve on each iteration of a similar problem.
His evolution on the 4th amendment/voting rights is indicative of how society's worst biases are baked into the system, and frequent litigation provides a space to prove harm and chip away at the status quo. While there is significant buy-in to the court system, it typically pales to the buy-in required at the legislative level. He started off as a privileged white guy, blind to the cost of extra security, and terrified of our obvious vulnerability. As time passed, he saw there was no extra security gained in these measures, and significant harm he was oblivious to. Without case after case, either in an actual court or in the press, he wouldn't have to continually weight the pros and cons and come to a better conclusion.
posted by politikitty at 12:58 PM on January 21, 2016
He specifically rejects the idea that the law can get it right the first time. A landmark case might rely on an overly sympathetic defendant, which pulls the decision a certain way. That's why so much of the legal field is built on prior case law, instead of simply the strict reading of laws and statutes. Law is cumulative and continually tries to improve on each iteration of a similar problem.
His evolution on the 4th amendment/voting rights is indicative of how society's worst biases are baked into the system, and frequent litigation provides a space to prove harm and chip away at the status quo. While there is significant buy-in to the court system, it typically pales to the buy-in required at the legislative level. He started off as a privileged white guy, blind to the cost of extra security, and terrified of our obvious vulnerability. As time passed, he saw there was no extra security gained in these measures, and significant harm he was oblivious to. Without case after case, either in an actual court or in the press, he wouldn't have to continually weight the pros and cons and come to a better conclusion.
posted by politikitty at 12:58 PM on January 21, 2016
Because I use an RSS reader I saw the previous version of this post, and had only just began digging into the links. In particular, I saw mention of that incident with the clerk wearing protective gear, and Posner's response, and dug through to the original paper that raised the concern and that Posner was responding to. Posner missed the point radically, and harrumphed all over a strawman version of the criticism directed at his ruling.
I have a theory that smart people make just as dumb arguments as dumb people on things they believe in. Because belief in anything is a prime motivator of self-delusion, and when it comes to lying to yourself, the smarter you are, the smarter your opponent is. In my experience finding the flaws in these educated opinions is a matter of doing more legwork to suss out the background and the definitions of terms, but the underlying reductio ad absurdum or petitio principii flaws are just as present and just as dumb as anything a stereotypical relative's Facebook post might contain. Just wrapped with bigger words.
So, yeah: it burned my butt hard when the Supreme Court majority opinion, striking down buffer zones around abortion clinics, was partially based on a Justice's own personal navel-gazing belief in what sort of speech acts would happen with and without them; said belief being the opposite of the ground truth. Likewise, what Posner pulled with that self-directed "research" around clothing/PPE, was pure pulled-it-out-the-butt bogus anecdata. It was the very-smart-person version of "but I don't see what's so hard about showing a license to vote, it's not a problem for me".
posted by traveler_ at 2:30 PM on January 21, 2016 [1 favorite]
I have a theory that smart people make just as dumb arguments as dumb people on things they believe in. Because belief in anything is a prime motivator of self-delusion, and when it comes to lying to yourself, the smarter you are, the smarter your opponent is. In my experience finding the flaws in these educated opinions is a matter of doing more legwork to suss out the background and the definitions of terms, but the underlying reductio ad absurdum or petitio principii flaws are just as present and just as dumb as anything a stereotypical relative's Facebook post might contain. Just wrapped with bigger words.
So, yeah: it burned my butt hard when the Supreme Court majority opinion, striking down buffer zones around abortion clinics, was partially based on a Justice's own personal navel-gazing belief in what sort of speech acts would happen with and without them; said belief being the opposite of the ground truth. Likewise, what Posner pulled with that self-directed "research" around clothing/PPE, was pure pulled-it-out-the-butt bogus anecdata. It was the very-smart-person version of "but I don't see what's so hard about showing a license to vote, it's not a problem for me".
posted by traveler_ at 2:30 PM on January 21, 2016 [1 favorite]
Without case after case, either in an actual court or in the press, he wouldn't have to continually weight the pros and cons and come to a better conclusion.
Well, it's easier to come to better conclusions if you are willing to accept the existence of principles (e.g. "rights exist") other than the utilitarian calculus. Of course you are more likely to fail to reach good conclusions, or ones consistent with previous law, if you think every decision has to be a cost/benefit calculation dependent on millions of facts and predictions that are hard to verify. Give me the boring old formalists every time.
posted by Aravis76 at 3:08 PM on January 21, 2016
Well, it's easier to come to better conclusions if you are willing to accept the existence of principles (e.g. "rights exist") other than the utilitarian calculus. Of course you are more likely to fail to reach good conclusions, or ones consistent with previous law, if you think every decision has to be a cost/benefit calculation dependent on millions of facts and predictions that are hard to verify. Give me the boring old formalists every time.
posted by Aravis76 at 3:08 PM on January 21, 2016
Give me the boring old formalists every time.
It's pure fantasy to think that's going to default to the idea that rights exist. Human nature is that privileged people will make privileged laws without full consideration of marginalized populations. Even with the best of intentions, these biases are inherent to any given power structure.
After 9/11, there was overwhelming public support to infringe on those rights. Or as people thought at the time "those rights were not meant to be so absolute that we cannot effectively police ourselves", similar to the current progressive rhetoric on the rights enshrined in the second amendment. We all make judgments on what rights are truly important.
If we rely on boring formalists, we lock ourselves in to every ugly legislative over reaction. We have fewer rights, not more rights. We would never have any of the landmark cases, because the default view is that marginalized groups are not worth recognizing until they have legislative influence.
posted by politikitty at 4:07 PM on January 21, 2016
It's pure fantasy to think that's going to default to the idea that rights exist. Human nature is that privileged people will make privileged laws without full consideration of marginalized populations. Even with the best of intentions, these biases are inherent to any given power structure.
After 9/11, there was overwhelming public support to infringe on those rights. Or as people thought at the time "those rights were not meant to be so absolute that we cannot effectively police ourselves", similar to the current progressive rhetoric on the rights enshrined in the second amendment. We all make judgments on what rights are truly important.
If we rely on boring formalists, we lock ourselves in to every ugly legislative over reaction. We have fewer rights, not more rights. We would never have any of the landmark cases, because the default view is that marginalized groups are not worth recognizing until they have legislative influence.
posted by politikitty at 4:07 PM on January 21, 2016
I'm not sure why one would conflate formalism and populism. I believe in entrenched human rights that can't be trumped by legislation. What does that have to do with formalism in legal reasoning?
posted by Aravis76 at 4:11 PM on January 21, 2016
posted by Aravis76 at 4:11 PM on January 21, 2016
For example, take the first legal decision that was made in the Somerset case. The first instance judge (whose judgment, in my opinion, is much better than Lord Mansfield's) tells the slave owner that he can't recover his runaway slave because "the lad has not stolen anything and has not committed any offence." The reason is straightforwardly doctrinal, and rests on a basic assumption of natural rights. What would a detailed cost/benefit analysis of the merits of recognising slavery in England have added?
posted by Aravis76 at 4:18 PM on January 21, 2016
posted by Aravis76 at 4:18 PM on January 21, 2016
Except our generally accepted understanding of human rights today is vastly different than 200 years ago. You can't separate it from populism because each generation will see the blindspots of the previous generation.
posted by politikitty at 4:19 PM on January 21, 2016
posted by politikitty at 4:19 PM on January 21, 2016
I'm not denying that the law can and should develop. I'm saying utilitarianism doesn't particularly help it to develop well. And I don't see that the only alternative to populism is utilitarianism.
posted by Aravis76 at 4:20 PM on January 21, 2016
posted by Aravis76 at 4:20 PM on January 21, 2016
Sorry, I put that too cryptically. I think doctrinal legal reasoning - call it formalist, if you like - is a creative process that involves moral engagement with the categories supplied by the tradition of the legal system you're dealing with (eg "rights"). It's true that, in trying to define rights, you may be influenced by your own prejudices. Nevertheless I think it's a more fruitful enterprise than trying to define a utility-maximising rule and I see no evidence that the judge who asks himself the utility question is likely to be less influenced by prejudice than the judge who asks himself what the law, properly understood, demands.
posted by Aravis76 at 4:23 PM on January 21, 2016
posted by Aravis76 at 4:23 PM on January 21, 2016
Do you know why Economics is the Dismal Science?
Because of it's utilitarian belief that slavery was a bad system, while everyone else fed into the moral thinking that some people were better than others, and those others needed a strong owner.
Life and Liberty are straight out of Adam Smith.
You're trying to create a dichotomy where none exists. When people are angry about cost/benefit analysis, it's not the actual decision process that's at issue. It's the values they give to the relative costs or benefit.
There is a legitimate question about how much preparation for work counts as work. You and I might disagree with Richard Posner in this instance. But by understanding his metric, we are more prepared to rebut that statement. We feel that he greatly underestimated the cost to employees, and that logic can be called out and refuted in either appeal or further action.
posted by politikitty at 4:46 PM on January 21, 2016
Because of it's utilitarian belief that slavery was a bad system, while everyone else fed into the moral thinking that some people were better than others, and those others needed a strong owner.
Life and Liberty are straight out of Adam Smith.
You're trying to create a dichotomy where none exists. When people are angry about cost/benefit analysis, it's not the actual decision process that's at issue. It's the values they give to the relative costs or benefit.
There is a legitimate question about how much preparation for work counts as work. You and I might disagree with Richard Posner in this instance. But by understanding his metric, we are more prepared to rebut that statement. We feel that he greatly underestimated the cost to employees, and that logic can be called out and refuted in either appeal or further action.
posted by politikitty at 4:46 PM on January 21, 2016
I don't think William Wilberforce, for example, objected to slavery on utilitarian grounds. Nor do I think that Adam Smith is more responsible for liberal political theory than Locke or - come to that - Coke or Blackstone, none of whom were utilitarians. JS Mill, on the other hand, was a utilitarian and was down with the exploitation of barbarous races. So I don't think utilitarianism gets to claim the credit for all progress in legal thinking over the last 200 years; there's plenty of moral blindness to go around.
My objection to cost/benefit analysis isn't to do with costs not being taken into account - it's to do with them being taken into account in contexts where they are morally irrelevant. I don't actually care about the utility-maximisation/preference-satisfaction of slaveowners and I don't believe most abolitionists did either. To Lord Mansfield's credit, he took the same view in the Somerset case (though he didn't go far enough) - he rejected slave owners' arguments about the consequences of his decision on the basis that they didn't matter, what mattered was the common law of England and its first principles. Which he concluded were inconsistent with the deportation of slaves to slave states. Again, is it really true that that decision would have been improved by some attempt to gather evidence about how much money slave-owners would lose and the economic consequences of that loss?
posted by Aravis76 at 5:01 PM on January 21, 2016
My objection to cost/benefit analysis isn't to do with costs not being taken into account - it's to do with them being taken into account in contexts where they are morally irrelevant. I don't actually care about the utility-maximisation/preference-satisfaction of slaveowners and I don't believe most abolitionists did either. To Lord Mansfield's credit, he took the same view in the Somerset case (though he didn't go far enough) - he rejected slave owners' arguments about the consequences of his decision on the basis that they didn't matter, what mattered was the common law of England and its first principles. Which he concluded were inconsistent with the deportation of slaves to slave states. Again, is it really true that that decision would have been improved by some attempt to gather evidence about how much money slave-owners would lose and the economic consequences of that loss?
posted by Aravis76 at 5:01 PM on January 21, 2016
Posner has made economics his little hobby. There is nothing more dangerous than an amateur who has taken Econ 101 and then has the power to apply it to policy or the law. "Hey, its simple, just supply and demand, amirite?" It's particularly dangerous when he embraces that rancid variant of neo-liberal economics coming out of U of Chicago. Posner has demonstrated that his grasp of economics is sophomoric and trivial. He doesn't have the background or economic rigor to understand that most of those simple Econ 101 principles are often the exception rather than the rule.
Posner is a classic example of the Dunning-Kruger effect in which "unskilled persons suffer illusory superiority, mistakenly assessing their ability to be much higher than it really is." Or the "mansplaining" syndrome in which smart men think they are experts in fields in which they are amateurs, such as economics.
So he comes up with his harebrained conclusion that jail sentences are appropriate only for blue-collar crime, not white-collar crime. After all, economics proves that blue-collar criminals have very little productive services to offer society in lieu of a jail time, while jailing white-collar criminals is an economic waste when they could be going right back to work being productive selling subprime mortgages.
posted by JackFlash at 5:30 PM on January 21, 2016
Posner is a classic example of the Dunning-Kruger effect in which "unskilled persons suffer illusory superiority, mistakenly assessing their ability to be much higher than it really is." Or the "mansplaining" syndrome in which smart men think they are experts in fields in which they are amateurs, such as economics.
So he comes up with his harebrained conclusion that jail sentences are appropriate only for blue-collar crime, not white-collar crime. After all, economics proves that blue-collar criminals have very little productive services to offer society in lieu of a jail time, while jailing white-collar criminals is an economic waste when they could be going right back to work being productive selling subprime mortgages.
posted by JackFlash at 5:30 PM on January 21, 2016
First, JS Mill pushed back fiercely against Thomas Carlyle on benefits of slavery.
But of course not all abolitionists were utilitarians. But utilitarianism gives you a framework to question your moral views, which is great when you grow up in a society that doesn't have a great track record on morality.
Under your theory, why did America get less shitty? Why did people come to the opinion that black people deserve the right to not be owned, or vote, or marry whites?
Most research points that it is exposure that lessens our prejudices. Or in other words continual evidence that the benefits to prejudice (saving us from a dangerous other) are basically zero, while the costs are quite high.
People don't need to understand or believe in economics to take part in supply and demand. It's a concept explaining an activity in society. Even if people internalize their cost/benefit analysis, the mechanism is still taking place and driving moral change.
Don't compare Posner to the judges you agree with. Compare him to the ones with a vastly different world view than you. If someone says "I don't believe that right exists" how can you argue that without just gaining enough political power to oust them? But if someone says "I don't believe upholding x right serves society well because y", that's something you can engage with.
It's not a belief system, as you keep trying to insist. It's a way for people with different belief systems to try and come to a consensus.
posted by politikitty at 5:56 PM on January 21, 2016
But of course not all abolitionists were utilitarians. But utilitarianism gives you a framework to question your moral views, which is great when you grow up in a society that doesn't have a great track record on morality.
Under your theory, why did America get less shitty? Why did people come to the opinion that black people deserve the right to not be owned, or vote, or marry whites?
Most research points that it is exposure that lessens our prejudices. Or in other words continual evidence that the benefits to prejudice (saving us from a dangerous other) are basically zero, while the costs are quite high.
People don't need to understand or believe in economics to take part in supply and demand. It's a concept explaining an activity in society. Even if people internalize their cost/benefit analysis, the mechanism is still taking place and driving moral change.
Don't compare Posner to the judges you agree with. Compare him to the ones with a vastly different world view than you. If someone says "I don't believe that right exists" how can you argue that without just gaining enough political power to oust them? But if someone says "I don't believe upholding x right serves society well because y", that's something you can engage with.
It's not a belief system, as you keep trying to insist. It's a way for people with different belief systems to try and come to a consensus.
posted by politikitty at 5:56 PM on January 21, 2016
politikitty: There is a legitimate question about how much preparation for work counts as work. You and I might disagree with Richard Posner in this instance. But by understanding his metric, we are more prepared to rebut that statement. We feel that he greatly underestimated the cost to employees, and that logic can be called out and refuted in either appeal or further action.
Except he doesn't have a metric. You need a properly applied formal methodology to have a metric. There's a reason the courts use expert witnesses for things like this, because the courts are not experts on matters that aren't matters of law. They can only be dilettantes. So yeah, Dunning-Kruger in action: Posner doesn't have the skills to properly test PPE donning procedures. But he tried, and it wound up in his opinion.
The rebuttal is that there's no logic there to rebut. He made up his own test and applied it and liked the result. He's as dumb as he is smart, because he only felt the need to convince himself.
posted by traveler_ at 9:34 PM on January 21, 2016
Except he doesn't have a metric. You need a properly applied formal methodology to have a metric. There's a reason the courts use expert witnesses for things like this, because the courts are not experts on matters that aren't matters of law. They can only be dilettantes. So yeah, Dunning-Kruger in action: Posner doesn't have the skills to properly test PPE donning procedures. But he tried, and it wound up in his opinion.
The rebuttal is that there's no logic there to rebut. He made up his own test and applied it and liked the result. He's as dumb as he is smart, because he only felt the need to convince himself.
posted by traveler_ at 9:34 PM on January 21, 2016
There's a reason trial courts have expert witnesses.
But we're talking about an appellate court, which has to make a determination based on the evidence presented during the trial and their own opinion. Not really different than when courts decide if art is obscene or not. You want a solution that the law doesn't allow.
The decision may be flawed because his metric is unscientific. But you can use it as evidence the next case is sufficiently different to justify an appellate ruling. X ruling stated a burden of 15 minutes, based on his estimation, was reasonable. In this case, the burden can be X or more as proven by expert witness provided.
I don't see how it would be better if the case simply ruled in favor of the employer, without commenting on their understanding of the time required. That creates difficulty in meeting the bar required to successfully appeal the next case.
posted by politikitty at 10:26 PM on January 21, 2016
But we're talking about an appellate court, which has to make a determination based on the evidence presented during the trial and their own opinion. Not really different than when courts decide if art is obscene or not. You want a solution that the law doesn't allow.
The decision may be flawed because his metric is unscientific. But you can use it as evidence the next case is sufficiently different to justify an appellate ruling. X ruling stated a burden of 15 minutes, based on his estimation, was reasonable. In this case, the burden can be X or more as proven by expert witness provided.
I don't see how it would be better if the case simply ruled in favor of the employer, without commenting on their understanding of the time required. That creates difficulty in meeting the bar required to successfully appeal the next case.
posted by politikitty at 10:26 PM on January 21, 2016
Under your theory, why did America get less shitty? Why did people come to the opinion that black people deserve the right to not be owned, or vote, or marry whites?
I don't think there was a single reason - a number of factors were involved in each of those rather different social and legal changes. Conflicts internal to Christianity itself - a good deal of abolitionist and civil rights rhetoric emerges from the Christian tradition - played a role. So did Brown v Topeka Board of Education, where the US Supreme Court (at least on the face of the text) held that segregation was inherently unconstitutional because its impact on African-African children violated their rights under the Constitution. They didn't ask what the impact of segregation on white people or society at large was, and how it affected the markets. It didn't matter. The impact on the African-American children was the only issue, because the question was only whether their rights were violated. I'm not denying that empirical arguments about the consequences of a proposed legal rule have a place in legal reasoning. In doctrinal legal reasoning, though, you have to show first why those consequences are legally relevant (who has a right to be protected from them by the court) and that's the step that's missing in Posner's usual approach. I really would be interested to know if Posner, in Lord Mansfield's place in the Somerset case, would have considered the effect of his decision on the slave owners and the economy built on slavery. If not, why not?
The broader point at issue seems to be that you think only cost/benefit analysis supplies a ground for argument with everyone, whereas the natural rights tradition (and the common law tradition, which are somewhat interrelated) don't. I don't think either of those is true.
First, utilitarianism only supplies a metric for agreement or disagreement for people who have already conceded its first premises (e.g. that welfare is aggregate and that everyone's welfare is morally relevant within this aggregate). A Nazi whose first premise is that actually the only goal of law and morality is to preserve a pure race or national group is not going to care about the costs or benefits of that policy to anyone except the race of choice. You're not going to talk him out of Nazism, from his own premises, any more than I'm going to talk him into a belief in universal human rights. If you try and argue that race equality is better for the white race or the German nation or whoever, via a cost/benefit analysis, he will only listen to you if you are prepared to treat the welfare of a significant portion of the human race as irrelevant to the calculation. If you do that, I doubt your data will show him what you want to show him. In any case, since your claims are all going to be about future predictions, not observed facts, they're not going to be irrefutable and are going to depend on beliefs about human agency and causes and effect (eg rational self-interest) that the Nazi will not share.
Secondly, the common law is a tradition of reasoned argument among people who share some but not all premises. It's perfectly possible to have a rational debate, within that tradition, over what the cases mean, properly interpreted (interpreted with due reference to the internal coherence of the law, the choices the legislator has made, the already-recognised rights of the parties, and the likely consequences of a decision where relevant). It simply isn't true that argument and rational persuasion aren't possible within that tradition and that we can only disagree about conclusions without showing our work in terms of reasoning. Yes, we can't argue with people who share none of our moral premises - e.g. Nazis - but then that's a problem for utilitarians too. It's a problem for any tradition of moral argument - the first premises can't be proved. Utilitarianism isn't exempt from that problem and is a weaker moral theory on other grounds.
posted by Aravis76 at 1:06 AM on January 22, 2016 [1 favorite]
I don't think there was a single reason - a number of factors were involved in each of those rather different social and legal changes. Conflicts internal to Christianity itself - a good deal of abolitionist and civil rights rhetoric emerges from the Christian tradition - played a role. So did Brown v Topeka Board of Education, where the US Supreme Court (at least on the face of the text) held that segregation was inherently unconstitutional because its impact on African-African children violated their rights under the Constitution. They didn't ask what the impact of segregation on white people or society at large was, and how it affected the markets. It didn't matter. The impact on the African-American children was the only issue, because the question was only whether their rights were violated. I'm not denying that empirical arguments about the consequences of a proposed legal rule have a place in legal reasoning. In doctrinal legal reasoning, though, you have to show first why those consequences are legally relevant (who has a right to be protected from them by the court) and that's the step that's missing in Posner's usual approach. I really would be interested to know if Posner, in Lord Mansfield's place in the Somerset case, would have considered the effect of his decision on the slave owners and the economy built on slavery. If not, why not?
The broader point at issue seems to be that you think only cost/benefit analysis supplies a ground for argument with everyone, whereas the natural rights tradition (and the common law tradition, which are somewhat interrelated) don't. I don't think either of those is true.
First, utilitarianism only supplies a metric for agreement or disagreement for people who have already conceded its first premises (e.g. that welfare is aggregate and that everyone's welfare is morally relevant within this aggregate). A Nazi whose first premise is that actually the only goal of law and morality is to preserve a pure race or national group is not going to care about the costs or benefits of that policy to anyone except the race of choice. You're not going to talk him out of Nazism, from his own premises, any more than I'm going to talk him into a belief in universal human rights. If you try and argue that race equality is better for the white race or the German nation or whoever, via a cost/benefit analysis, he will only listen to you if you are prepared to treat the welfare of a significant portion of the human race as irrelevant to the calculation. If you do that, I doubt your data will show him what you want to show him. In any case, since your claims are all going to be about future predictions, not observed facts, they're not going to be irrefutable and are going to depend on beliefs about human agency and causes and effect (eg rational self-interest) that the Nazi will not share.
Secondly, the common law is a tradition of reasoned argument among people who share some but not all premises. It's perfectly possible to have a rational debate, within that tradition, over what the cases mean, properly interpreted (interpreted with due reference to the internal coherence of the law, the choices the legislator has made, the already-recognised rights of the parties, and the likely consequences of a decision where relevant). It simply isn't true that argument and rational persuasion aren't possible within that tradition and that we can only disagree about conclusions without showing our work in terms of reasoning. Yes, we can't argue with people who share none of our moral premises - e.g. Nazis - but then that's a problem for utilitarians too. It's a problem for any tradition of moral argument - the first premises can't be proved. Utilitarianism isn't exempt from that problem and is a weaker moral theory on other grounds.
posted by Aravis76 at 1:06 AM on January 22, 2016 [1 favorite]
Oh, and on Mill - I was referring to his position on the British Empire in India. His position was that a barbarous people, like Indians, needed despotic rule because they weren't fit for liberty yet. Whereas even a grumpy conservative like Burke managed to grasp, half a century earlier, that it's wrong to exploit people even if you claim you're doing it for their own good.
posted by Aravis76 at 1:28 AM on January 22, 2016
posted by Aravis76 at 1:28 AM on January 22, 2016
Having met the man before he was a judge I believe he thought he was going to be a Supreme Court justice. In my opinion, his writings are an attempt to prove to the world that they were wrong not to name him to that bench.
posted by OhSusannah at 3:15 AM on January 22, 2016
posted by OhSusannah at 3:15 AM on January 22, 2016
In my opinion, his writings are an attempt to prove to the world that they were wrong not to name him to that bench.
And instead he proved to the world that they dodged a bullet.
posted by JackFlash at 7:54 AM on January 22, 2016
And instead he proved to the world that they dodged a bullet.
posted by JackFlash at 7:54 AM on January 22, 2016
politikitty: There's a reason trial courts have expert witnesses.
But we're talking about an appellate court, which has to make a determination based on the evidence presented during the trial and their own opinion. Not really different than when courts decide if art is obscene or not. You want a solution that the law doesn't allow.
And these reasons disappear somehow when a case is appealed? My understanding was "their own opinion" was a legal opinion. Otherwise, yeah, I agree it's exactly the same as "I know it when I see it" decisions regarding obscenity. One guess what I think about that. The underlying flaw is the same: Posner put on his Dunning-Kruger hat, declared "I know what I'm doing", and constructed a bogus standard out of a bogus experiment.
You want a solution that the law doesn't allow. … I don't see how it would be better if the case simply ruled in favor of the employer, without commenting on their understanding of the time required.
I didn't say what solutions I wanted. I do want judges to comment on their understanding of the time required: their understanding of the law and of all background facts not in dispute. I do not want them introducing new "facts" based on rectal excavation, such as in my other example where the Supreme Court hid a black-is-white inversion of truth in a ruling. I'd rather they comment on their lack of knowledge than make something up.
X ruling stated a burden of 15 minutes, based on his estimation, was reasonable. In this case, the burden can be X or more as proven by expert witness provided.
Let's say I stick my hand in a hot oven, shout "ow that's hot", and declare its temperature to be 2000°F. That's good, right, because now there's a burden that can be met or not by subsequent expert witnesses in workplace injury cases? Ovens less than that temperature are not hot? Of course not. Bogus numbers coming from bogus methods just create an artificial standard and gods help us if they become precedent. I would much, much, (much much much) rather the courts say "we need to have a number on how hot ovens can be to be considered dangerous, but we don't have that" than they say "therefore we'll make up a number using our tremendous expertise in all things under the sun to be confident our method isn't just totally BS."
posted by traveler_ at 9:43 AM on January 22, 2016
But we're talking about an appellate court, which has to make a determination based on the evidence presented during the trial and their own opinion. Not really different than when courts decide if art is obscene or not. You want a solution that the law doesn't allow.
And these reasons disappear somehow when a case is appealed? My understanding was "their own opinion" was a legal opinion. Otherwise, yeah, I agree it's exactly the same as "I know it when I see it" decisions regarding obscenity. One guess what I think about that. The underlying flaw is the same: Posner put on his Dunning-Kruger hat, declared "I know what I'm doing", and constructed a bogus standard out of a bogus experiment.
You want a solution that the law doesn't allow. … I don't see how it would be better if the case simply ruled in favor of the employer, without commenting on their understanding of the time required.
I didn't say what solutions I wanted. I do want judges to comment on their understanding of the time required: their understanding of the law and of all background facts not in dispute. I do not want them introducing new "facts" based on rectal excavation, such as in my other example where the Supreme Court hid a black-is-white inversion of truth in a ruling. I'd rather they comment on their lack of knowledge than make something up.
X ruling stated a burden of 15 minutes, based on his estimation, was reasonable. In this case, the burden can be X or more as proven by expert witness provided.
Let's say I stick my hand in a hot oven, shout "ow that's hot", and declare its temperature to be 2000°F. That's good, right, because now there's a burden that can be met or not by subsequent expert witnesses in workplace injury cases? Ovens less than that temperature are not hot? Of course not. Bogus numbers coming from bogus methods just create an artificial standard and gods help us if they become precedent. I would much, much, (much much much) rather the courts say "we need to have a number on how hot ovens can be to be considered dangerous, but we don't have that" than they say "therefore we'll make up a number using our tremendous expertise in all things under the sun to be confident our method isn't just totally BS."
posted by traveler_ at 9:43 AM on January 22, 2016
Appellate courts can take judicial notice of new facts. (See FRE 201[f] for the Federal rule.) It's commonplace.
Posner's experiment goes beyond that, but it's wrong to think that appellate courts only consider the trial record, period, end of story.
Regarding the inappropriateness of Posner's experiments, this from a dissent in the protective gear case is worth quoting (pardon me if I missed it already included upthread):
I am startled, to say the least, to think that an appellate court would resolve such a dispute based on a post‐ argument experiment conducted in chambers by a judge...As the majority concedes, this cannot be considered as evidence in the case. To the extent (even slight) that the court is relying on this experiment to resolve a disputed issue of fact, I believe that it has strayed beyond the boundaries established by Federal Rule of Civil Procedure 56. (This is quite different, it seems to me, from including an illustrative photograph whose accuracy presumably could not be contested.) I note as well that this experiment proceeded on the assumption that washing is not essential for workers handling raw poultry—an assumption I have already shown to be inconsistent with government regulations for hygiene within a meat processing plant.
There were then attempts to get a rehearing, which prompted more dissents and concurring opinions. To wit:
By explicitly rejecting Appellant’s affidavit and accepting the employer’s time estimation (and confirming that with a court staff “experiment”), the majority ignored the evidence in the light most favorable to the employees and therefore did not conduct the proper Rule 56 analysis. In the light most favorable to Appellant,...
[this was a summary judgment appeal, that's the standard]
...how long it took to don and doff was an issue of fact that should have been decided by a jury.
There are similar criticisms of Posner's internet research and other forms of reliance on information not in evidence, in the various dissents and concurrences on his decisions.
posted by snuffleupagus at 8:26 PM on January 22, 2016
Posner's experiment goes beyond that, but it's wrong to think that appellate courts only consider the trial record, period, end of story.
Regarding the inappropriateness of Posner's experiments, this from a dissent in the protective gear case is worth quoting (pardon me if I missed it already included upthread):
I am startled, to say the least, to think that an appellate court would resolve such a dispute based on a post‐ argument experiment conducted in chambers by a judge...As the majority concedes, this cannot be considered as evidence in the case. To the extent (even slight) that the court is relying on this experiment to resolve a disputed issue of fact, I believe that it has strayed beyond the boundaries established by Federal Rule of Civil Procedure 56. (This is quite different, it seems to me, from including an illustrative photograph whose accuracy presumably could not be contested.) I note as well that this experiment proceeded on the assumption that washing is not essential for workers handling raw poultry—an assumption I have already shown to be inconsistent with government regulations for hygiene within a meat processing plant.
There were then attempts to get a rehearing, which prompted more dissents and concurring opinions. To wit:
By explicitly rejecting Appellant’s affidavit and accepting the employer’s time estimation (and confirming that with a court staff “experiment”), the majority ignored the evidence in the light most favorable to the employees and therefore did not conduct the proper Rule 56 analysis. In the light most favorable to Appellant,...
[this was a summary judgment appeal, that's the standard]
...how long it took to don and doff was an issue of fact that should have been decided by a jury.
There are similar criticisms of Posner's internet research and other forms of reliance on information not in evidence, in the various dissents and concurrences on his decisions.
posted by snuffleupagus at 8:26 PM on January 22, 2016
Protecting Children Vs. Protecting Privacy
Can Wisconsin make a sex offender who’s completed his sentence wear a GPS monitor on his ankle for the rest of his life? Reversing a lower court judgment last week, the U.S. Court of Appeals for the 7th Circuit said the answer is yes. The opinion, by the influential Judge Richard Posner, presents itself as an exercise in cost-benefit analysis and legal common sense.posted by the man of twists and turns at 12:01 PM on February 2, 2016
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posted by leotrotsky at 6:48 PM on January 20, 2016 [4 favorites]