International Judicial Monitor
Published by the International judicial Academy of the International Law Institute, Washington, D.C.
with circulation assistance from the American Society of International Law
Spring 2017 Issue
 

In Review:
Books About International Law and About Courts and Judges

 

Richard Posner

By: William Domnarski
Oxford University Press. 2016

Richard Posner

Reviewed by: James G. Apple, Editor-in-Chief, International Judicial Monitor

The International Judicial Monitor has reviewed three of the many books written by Richard Posner, a judge sitting on the United States Court of Appeals for the Seventh Circuit in Chicago, Illinois (see International Judicial Monitor, Archives at top of Home Page, Winter 2014, Fall 2014, Spring, 2016). The judge has written more than 30 books during his 36 years as a judge. In addition his writing credits include thousands of judicial opinions, and hundreds of journal, magazine and newspaper articles. Although he is not a household name in the United  States, he is widely known in legal and academic circles.

Several years ago I was talking with a judge of the Maryland Court of  Special Appeals (intermediate appellate court) about an upcoming program of the International Judicial Academy (of which I was then President). I happened to remark that the International Judicial Monitor had recently published a review of one of Judge Posner’s books. She immediately brightened and commented that when she was doing legal research for some opinion on which she was working, she was always pleased when she came across an opinion by Judge Posner, because his opinions were always so well written and easy to understand.

Now veteran lawyer and writer William Domnarski of Riverside, California, who practices exclusively in the federal courts, has written a very revealing and comprehensive biography of Judge Posner. The book is not an obsequious account of Judge Posner’s life to date – it is objective and balanced in offering a factual account of the his life as well as an analysis of his contributions to law and the legal world. It is based on the author’s access to Posner archives at the University of Chicago and interviews with over 200 persons known to Posner and with whom he has has come into contact from grammar school through his university career, including teachers, and his colleagues on the bench and his law clerks. As the dust jacket on the book states: “ William Domnarski examines the life experience, personality, academic career, jurisprudence and professional relationships of his subject with depth and clarity.” Another tribute there is that the judge is “one of the great legal minds of our age, on par with such generation defining judges as Oliver Wendell Holmes, Learned Hand, and Henry Friendly.”

The book, as is true with most biographies, begins with his early life, describing the circumstances of his birth in Manhattan to his parents, both from Eastern Europe (Austria and Romania). He went to grammar school and high school in New York City and a suburb, Scarsdale, New York; college at Yale and Harvard Law School. He was an accomplished student in every school he attended, graduating first in his class at Harvard and serving as president of the Harvard Law Review. Domnarski brings out a curious fact about Judge Posner in his early life – he never really considered becoming a lawyer until late in his college career – he wanted to become a writer, and majored in English literature in college. He considered proceeding to a graduate degree in that subject before applying to both Harvard and Yale law schools. There is however no explanation in the book for Posner’s change of career choices.

Harvard Law School proved to be the right choice for the judge. He loved law school, did well in it and “Harvard became the greatest experience of his life.” Domnarski spends several pages focusing on “Posner at Harvard Law School” which offers insights on Posner both as a student and a personality, continuing the development of Posner’s student years in the section on “Posner at Yale.”

Posner became a Supreme Court law clerk after law school for Judge William Brennan, followed by several positions in the federal government. The next chapter covers his time at the University of Chicago Law School, which was where he first ran into and then was in the forefront of the law and economics movement. The

 

author delves into the judge’s involvement in this movement at some length, describing his relationships with both legal and economics professors who would become the vanguard of the movement. Posner became so involved in this intellectual movement that at one time he stated that he preferred that people think of him as an economist rather than as a law professor. For those readers who want an explanation about the nature of the contents of the law and economics movement and its objectives, the parts of the book that deal with it provide a good introduction to the whole subject.

The book covers in great detail Posner’s life as a judge, from the time he was appointed to the U.S. Court of Appeals for the Seventh Circuit in December, 1981, to the present day. These parts of the book deal with his activities as a judge, including  hearing oral arguments, writing opinions, his views on the organization of the federal courts and constitutional interpretation, and how he organizes his chambers. One revealing paragraph relates to how he deals with his law clerks, which comes as a surprise to anyone who has had more than a little contact with federal judges generally. He instructs all of his law clerks to call him by his first name (“Dick”) because it helps develop “free thought” between himself and the clerks. Such a situation is surprising as it is rarely practiced by other judges, especially federal judges. The author’s interviews with former law clerks provide valuable insights into the judge's personality and his relations with his judicial colleagues.

Domnarski also covers thoroughly Posner’s career as a writer. One notable fact: Judge Posner writes his own opinions, rather than detailing that activity to his law clerks, as many judges do. Early in his career he wrote and collected  a group of articles about operations and administration of the federal courts and combined them into a book titled appropriately The Federal Courts (1985). One of his most notable books in this early period of his life is Law and Literature (1988) which began as an essay published in the Virginia Law Review in 1986.

The final chapters of the book deal with his becoming a public intellectual and legal critic, and how he promoted legal and judicial change and reform. Again the author is able to expose Posner’s thought processes and intellectual activities and writings that led him to become one of the great legal minds of the last quarter of the 20th Century and first decade of the 21st.

It must be emphasized again that the book is not just a glowing tribute to the judge. Domnarski includes negative comments about Posner as a judge and as a person, including some surprising statements made by the judge about himself.

A few examples of such comments are:

- Posner would describe himself as “a disrespectful brat at Yale College in the 1950s”.

- Posner in his junior and senior years [at Yale] had acquired a reputation as an iconoclast and radical.

- Posner, during his career, has lacked “social warmth and “social skills’. He was mild-mannered but brutal in his critical responses [to Opinions of others at the Federal Trade Commission]. He made no effort to soften his criticism.

- He offends or shocks people in social settings and seems to enjoy writing about them in his letters.

William Domnarski presents a well-written biography of a major and dominant national figure within the legal system of the United States. It should be read by all who are interested in the career of a remarkable contemporary judge, one who has become a very strong critic of federal judiciary, but who has also made many positive contributions to the strength of that judiciary.

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© 2017 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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