Richard Posner is famous throughout the legal world for his pioneering and controversial espousal of the belief that the study of law cannot be divorced from the study of economics. Here, in this volume of essays based upon his Clarendon Lectures, he explores the relationship between the legal systems of the UK and USA. The essays range widely over themes which will be familiar to many students and teachers of law: in the first essay he compares the work of the two most prominent writers on jurisprudence in the second half of this century, one English (HLA Hart) and one American (Ronald Dworkin). His controversial conclusion that trying to define "law" is futile, distracting and illustrative of the impoverishment of traditional legal theory will fascinate students of legal theory. In the second essay he examines a number of English cases drawn primarily from the two fields in which English and American law overlap most completely - torts and contracts. Here he argues that while in general English judges use their common sense effectively to approximate the results that an economic analyst would recommend they would do even better if they were more receptive to the economic approach to the common law - if they were, in other words, a little more like American judges. In the third essay he examines the differences between the English and American legal systems at the administrative or operational level as distinct from the jurisprudential and doctrinal levels. The conclusions drawn from his analysis challenge traditional orthodoxy. His concluding advice to law reformers in both jurisdictions is that piecemeal reform of either system is to be avoided.
In this short and highly readable work readers will find much that will delight, stimulate, and challenge them. It is a book to be read by all students and scholars of law.

Ever since the publication in 2004 of the 9/11 Commission Report, the U.S. intelligence community has been in the throes of a convulsive movement for reform. In Preventing Surprise Attacks (2005), Richard A. Posner carried the story of the reform movement up to the enactment of the Intelligence Reform and Terrorism Prevention Act of 2004, which produced a defective plan for reorganizing the intelligence system, partly as result of the failure of the 9/11 Commission and Congress to bring historical, comparative, and scholarly perspectives to bear issues. At that time, however, the new structure had not yet been built. Posner's new book brings the story up to date. He argues that the decisions about structure that the Administration has made in implementation of the Act are creating too top-heavy, too centralized, an intelligence system. The book * exposes fallacies in criticisms of the performance of the U.S. intelligence services; * analyzes structures and priorities for directing and coordinating U.S. intelligence in the era of global terrorism; * presents new evidence for the need to create a domestic intelligence agency separate from the FBI, and a detailed blueprint for such an agency; * incorporates a wealth of material based on developments since the first book, including the report of the presidential commission on weapons of mass destruction and the botched response to Hurricane Katrina; * exposes the inadequacy of the national security computer networks; * critically examines Congress's performance in the intelligence field, and raises constitutional issues concerning the respective powers of Congress and the President; * emphasizes the importance of reforms that do not require questionable organizational changes. The book is published in cooperation with the Hoover Institution

A distinguished and experienced appellate court judge, Richard A. Posner offers in this new book a unique and, to orthodox legal thinkers, a startling perspective on how judges and justices decide cases. When conventional legal materials enable judges to ascertain the true facts of a case and apply clear pre-existing legal rules to them, Posner argues, they do so straightforwardly; that is the domain of legalist reasoning. However, in non-routine cases, the conventional materials run out and judges are on their own, navigating uncharted seas with equipment consisting of experience, emotions, and often unconscious beliefs. In doing so, they take on a legislative role, though one that is confined by internal and external constraints, such as professional ethics, opinions of respected colleagues, and limitations imposed by other branches of government on freewheeling judicial discretion. Occasional legislators, judges are motivated by political considerations in a broad and sometimes a narrow sense of that term. In that open area, most American judges are legal pragmatists. Legal pragmatism is forward-looking and policy-based. It focuses on the consequences of a decision in both the short and the long term, rather than on its antecedent logic. Legal pragmatism so understood is really just a form of ordinary practical reasoning, rather than some special kind of legal reasoning.

Supreme Court justices are uniquely free from the constraints on ordinary judges and uniquely tempted to engage in legislative forms of adjudication. More than any other court, the Supreme Court is best understood as a political court.

Judges play a central role in the American legal system, but their behavior as decision-makers is not well understood, even among themselves. The system permits judges to be quite secretive (and most of them are), so indirect methods are required to make sense of their behavior. Here, a political scientist, an economist, and a judge work together to construct a unified theory of judicial decision-making. Using statistical methods to test hypotheses, they dispel the mystery of how judicial decisions in district courts, circuit courts, and the Supreme Court are made.

The authors derive their hypotheses from a labor-market model, which allows them to consider judges as they would any other economic actors: as self-interested individuals motivated by both the pecuniary and non-pecuniary aspects of their work. In the authors' view, this model describes judicial behavior better than either the traditional legalist theory, which sees judges as automatons who mechanically apply the law to the facts, or the current dominant theory in political science, which exaggerates the ideological component in judicial behavior. Ideology does figure into decision-making at all levels of the federal judiciary, the authors find, but its influence is not uniform. It diminishes as one moves down the judicial hierarchy from the Supreme Court to the courts of appeals to the district courts. As "The Behavior of Federal Judges" demonstrates, the good news is that ideology does not extinguish the influence of other components in judicial decision-making. Federal judges are not just robots or politicians in robes."

This collection is the first comprehensive selection of readings focusing on corporate bankruptcy. Its main purpose is to explore the nature and efficiency of corporate reorganization using interdisciplinary approaches drawn from law, economics, business, and finance. Substantive areas covered include the role of credit, creditors' implicit bargains, nonbargaining features of bankruptcy, workouts of agreements, alternatives to bankruptcy, and proceedings in countries including the United States, United Kingdom, Europe, and Japan. The Honorable Richard A. Posner, Chief Judge of the U.S. Court of Appeals for the Seventh Circuit, offers a foreword to the collection.

This collection is the first comprehensive selection of readings focusing on corporate bankruptcy. Its main purpose is to explore the nature and efficiency of corporate reorganization using interdisciplinary approaches drawn from law, economics, business, and finance. Substantive areas covered include the role of credit, directors' implicit bargains, nonbargaining features of bankruptcy, workouts of agreements, alternatives to bankruptcy, and proceedings in countries other than the United States, including the United Kingdom, Europe, and Japan. The editors' introductions guide readers through each of the six parts, comprised of edited versions of papers combined with editorial notes to reduce the time required to absorb key ideas.

Each year, more than two million children around the world fall victim to commercial sexual and labor exploitation. Put simply, the growing epidemic of child exploitation demands a coordinated response. In addition to compliance concerns raised by the Foreign Corrupt Practices Act (FCPA), UK Bribery Act, and other more familiar transnational anti-corruption laws, today's companies must also respond to more novel legal requirements, such as those contained in the California Transparency in Supply Chains Act, Federal Acquisition Regulations on Trafficking in Persons in Federal Contracts, U.K. Modern Slavery Act of 2015, European Union's Directive on Transparency and its amendments, and the proposed federal Business Transparency in Trafficking and Slavery Act and other laws. This Second Edition of Child Exploitation and Trafficking: Examining Global Enforcement and Supply Chain Challenges and U.S. Responses brings fresh, practical thinking to this oft-misunderstood area of the law, helping erase some of its counterproductive mythology. The book not only provides the first comprehensive, practical introduction to the history and present-day reality of child exploitation and supply chain issues, but it also traces the interconnected web of domestic and transnational federal laws and law enforcement efforts launched in response thereto. The Second Edition not only is updated to reflect the latest trends and other development presented by two of the premier experts concerning this constantly-evolving field, but it also contains new chapters examining areas such as special issues in the fight against human trafficking and the raft of landmark anti-trafficking laws that herald a new compliance reality for the globe's business community. Written from the distinctive perspective of those who have spent their careers in the trenches investigating, prosecuting, and adjudicating these intricate, emotional cases, as well as those who are tasked with ensuring that products are free from the taint of child exploitation and force labor, the book is uniquely proscriptive, as well as descriptive, in the sense that it relies on real-world examples to serve up practical advice and reform proposals for those involved at all levels of this challenging area.

No sitting federal judge has ever written so trenchant a critique of the federal judiciary as Richard A. Posner does in this, his most confrontational book. Skewering the politicization of the Supreme Court, the mismanagement of judicial staff, the overly complex system of appeals, the threat of originalism, outdated procedures, and the backward-looking traditions of law schools and the American judicial system, Posner has written a cri de coeur and a battle cry. With the prospect that the Supreme Court will soon be remade in substantial, potentially revanchist, ways, The Federal Judiciary exposes the American legal system's most troubling failures in order to instigate much-needed reforms. Posner presents excerpts from legal texts and arguments to expose their flaws, incorporating his own explanation and judgment to educate readers in the mechanics of judicial thinking. This rigorous intellectual work separates sound logic from artful rhetoric designed to subvert precedent and open the door to oblique interpretations of American constitutional law. In a rebuke of Justice Antonin Scalia's legacy, Posner shows how originalists have used these rhetorical strategies to advance a self-serving political agenda. Judicial culture adheres to an antiquated traditionalism, Posner argues, that inhibits progressive responses to threats from new technologies and other unforeseen challenges to society. With practical prescriptions for overhauling judicial practices and precedents, The Federal Judiciary offers an unequaled resource for understanding the institution designed by the founders to check congressional and presidential power and resist its abuse.

Hailed in its first edition as an outstanding work, as stimulating as it is intellectually distinguished (New York Times), "Law and Literature" has handily lived up to the Washington Post s prediction that the book would remain essential reading for many years to come. This third edition, extensively revised and enlarged, is the only comprehensive book-length treatment of the field. It continues to emphasize the essential differences between law and literature, which are rooted in the different social functions of legal and literary texts. But it also explores areas of mutual illumination and expands its range to include new topics such as the cruel and unusual punishments clause of the Constitution, illegal immigration, surveillance, global warming and bioterrorism, and plagiarism.

In this edition, literary works from classics by Homer, Shakespeare, Milton, Dostoevsky, Melville, Kafka, and Camus to contemporary fiction by Tom Wolfe, Margaret Atwood, John Grisham, and Joyce Carol Oates come under Richard Posner s scrutiny, as does the film "The Matrix."

The book remains the most clear, acute account of the intersection of law and literature.

A liberal state is a representative democracy constrained by the rule of law. Richard Posner argues for a conception of the liberal state based on pragmatic theories of government. He views the actions of elected officials as guided by interests rather than by reason and the decisions of judges by discretion rather than by rules. He emphasizes the institutional and material, rather than moral and deliberative, factors in democratic decision making.

Posner argues that democracy is best viewed as a competition for power by means of regular elections. Citizens should not be expected to play a significant role in making complex public policy regarding, say, taxes or missile defense. The great advantage of democracy is not that it is the rule of the wise or the good but that it enables stability and orderly succession in government and limits the tendency of rulers to enrich or empower themselves to the disadvantage of the public. Posner's theory steers between political theorists' concept of deliberative democracy on the left and economists' public-choice theory on the right. It makes a significant contribution to the theory of democracy--and to the theory of law as well, by showing that the principles that inform Schumpeterian democratic theory also inform the theory and practice of adjudication. The book argues for law and democracy as twin halves of a pragmatic theory of American government.

Like other dangerous but pleasurable activities, such as downhill skiing and mountain climbing, engaging in unprotected sex implicitly involves the weighing of costs and benefits. Recognizing that the transmission of the AIDS virus is a consequence of personal choices - often rational and informed - to engage in risky conduct, the authors employ the tools of economic analysis to reassess the orthodox approach to AIDS by public health specialists. Standard predictions of the spread of AIDS, the authors argue, are questionable because they ignore rational behavioral responses to the risk of infection. For the same reason, customary recommended public health measures, such as extensive testing for the AIDS virus, not only may be ineffective in controlling the spread of the disease but may actually cause it to spread more rapidly. The authors examine regulatory measures and proposals such as mandatory testing, criminal punishments, and immigration controls, as well as the subsidization of AIDS education and medical research, the social and fiscal costs of AIDS, the political economy of the government's response, and the interrelation of AIDS and fertility risk. Neither liberal nor conservative, yet on the whole skeptical about governmental involvement in the epidemic, this book is certain to be controversial, but its injection of hard-headed economic thinking into the AIDS debate is long overdue. Although Private Choices and Public Health is accessible to the interested general reader, it will also capture the attention of economists - especially those involved in health issues - epidemiologists, public health officials, and specialists in sexual behavior and drug addiction.

Judges and legal scholars talk past one another, if they have any conversation at all. Academics couch their criticisms of judicial decisions in theoretical terms, which leads many judges-at the risk of intellectual stagnation-to dismiss most academic discourse as opaque and divorced from reality. In Divergent Paths, Richard Posner turns his attention to this widening gap within the legal profession, reflecting on its causes and consequences and asking what can be done to close or at least narrow it. The shortcomings of academic legal analysis are real, but they cannot disguise the fact that the modern judiciary has several serious deficiencies that academic research and teaching could help to solve or alleviate. In U.S. federal courts, which is the focus of Posner's analysis of the judicial path, judges confront ever more difficult cases, many involving complex and arcane scientific and technological distinctions, yet continue to be wedded to legal traditions sometimes centuries old. Posner asks how legal education can be made less theory-driven and more compatible with the present and future demands of judging and lawyering. Law schools, he points out, have great potential to promote much-needed improvements in the judiciary, but doing so will require significant changes in curriculum, hiring policy, and methods of educating future judges. If law schools start to focus more on practical problems facing the American legal system rather than on debating its theoretical failures, the gulf separating the academy and the judiciary will narrow.

When it was first published a quarter of a century ago, Richard A. Posner's exposition and defence of an economic approach to antitrust law was a jeremiad against the intellectual disarray that then characterized the field. As other perspectives on antitrust law have fallen away, Posner's book has played a major role in transforming the field of antitrust law into a body of economically rational principles largely in accord with the ideas set forth in the first edition. Today's antitrust professionals may disagree on specific practices and rules, but most litigators, prosecutors, judges and scholars agree that the primary goal of antitrust law should be to promote economic welfare, and that economic theory should be used to determine how well business practices conform to that goal. In this thoroughly revised edition, Posner explains the economic approach to new generations of lawyers and students. He updates and amplifies his approach as it applies to the developments, both legal and economic, in the antitrust field since 1976. The "new economy", for example, has presented a host of difficult antitrust questions, and in an entirely new chapter, Posner explains how the economic approach can be applied to new industries, such as software manufacturers, Internet service providers and those that provide communications equipment and services. "The antitrust laws are here to stay", Posner writes, "and the practical question is how to administer them better - more rationally, more accurately, more expeditiously, more efficiently". This fully revised classic should continue to be a standard work in the field.

A Guide to America's Sex Laws is the first concise compendium of the nation's sex laws. It summarizes the laws regulating personal sexual activity, revealing gaps, anachronisms, anomalies, inequalities, and irrationalities, and providing an empirical basis for studies of sexual regulation. Judge Richard A. Posner and Katharine B. Silbaugh cover broadly defined areas of regulation, providing background and definitions and placing the laws in their historical and constitutional context. From Alabama to Wyoming, this informative and fascinating reference book will be an essential resource. It takes only a few minutes with A Guide to [America's] Sex to realize that the nation's laws governing what two consenting adults can do with one another are an odd jumble.--Eric Fidler, San Diego Commerce Especially noteworthy is how laws governing various sexual activities vary from state to state.--Library Journal Fascinating and often surprising facts are concisely documented and conveniently organized in A Guide.--Carlin Meyer, New York Law Journal

Following up on his timely and well-received book, "A Failure of Capitalism," Richard Posner steps back to take a longer view of the continuing crisis of democratic capitalism as the American and world economies crawl gradually back from the depths to which they had fallen in the autumn of 2008 and the winter of 2009.

By means of a lucid narrative of the crisis and a series of analytical chapters pinpointing critical issues of economic collapse and gradual recovery, Posner helps non-technical readers understand business-cycle and financial economics, and financial and governmental institutions, practices, and transactions, while maintaining a neutrality impossible for persons professionally committed to one theory or another. He calls for fresh thinking about the business cycle that would build on the original ideas of Keynes. Central to these ideas is that of uncertainty as opposed to risk. Risk can be quantified and measured. Uncertainty cannot, and in this lies the inherent instability of a capitalist economy.

As we emerge from the financial earthquake, a deficit aftershock rumbles. It is in reference to that potential aftershock, as well as to the government s stumbling efforts at financial regulatory reform, that Posner raises the question of the adequacy of our democratic institutions to the economic challenges heightened by the greatest economic crisis since the Great Depression. The crisis and the government s energetic response to it have enormously increased the national debt at the same time that structural defects in the American political system may make it impossible to pay down the debt by any means other than inflation or devaluation.

In this book, one of our country's most distinguished scholar-judges shares with us his vision of the law. For the past two thousand years, the philosophy of law has been dominated by two rival doctrines. One contends that law is more than politics and yields, in the hands of skillful judges, correct answers to even the most difficult legal questions; the other contends that law is politics through and through and that judges wield essentially arbitrary powers. Rejecting these doctrines as too metaphysical in the first instance and too nihilistic in the second, Richard Posner argues for a pragmatic jurisprudence, one that eschews formalism in favor of the factual and the empirical. Laws, he argues, are not abstract, sacred entities, but socially determined goads for shaping behavior to conform with society's values. Examining how judges go about making difficult decisions, Posner argues that they cannot rely on either logic or science, but must fall back on a grab bag of informal methods of reasoning that owe less than one might think to legal training and experience. Indeed, he reminds us, the greatest figures in American law have transcended the traditional conceptions of the lawyer's craft. Robert Jackson did not attend law school and Benjamin Cardozo left before getting a degree. Holmes was neither the most successful of lawyers nor the most lawyerly of judges. Citing these examples, Posner makes a plea for a law that frees itself from excessive insularity and takes all knowledge, practical and theoretical, as grist for its mill. The pragmatism that Posner espouses implies looking at problems concretely, experimentally, without illusions, with an emphasis on keeping diverse paths of inquiry open, and, above all, with the insistence that social thought and action be evaluated as instruments to desired human goals rather than as ends in themselves. In making his arguments, he discusses notable figures in jurisprudence from Antigone to Ronald Dworkin as well as recent movements ranging from law and economics to civic republicanism, and feminism to libertarianism. All are subjected to Posner's stringent analysis in a fresh and candid examination of some of the deepest problems presented by the enterprise of law.

Catastrophic risks are much greater than is commonly appreciated. Collision with an asteroid, runaway global warming, voraciously replicating nanomachines, a pandemic of gene-spliced smallpox launched by bioterrorists, and a world-ending accident in a high-energy particle accelerator, are among the possible extinction events that are sufficiently likely to warrant careful study. How should we respond to events that, for a variety of psychological and cultural reasons, we find it hard to wrap our minds around? Posner argues that realism about science and scientists, innovative applications of cost-benefit analysis, a scientifically literate legal profession, unprecedented international cooperation, and a pragmatic attitude toward civil liberties are among the keys to coping effectively with the catastrophic risks.

Richard A. Posner is probably the leading scholar in the rapidly growing field of the economics of law; he is also an extremely lucid writer. In this book, he applies economic theory to four areas of interest to students of social and legal institutions: the theory of justice, primitive and ancient social and legal institutions, the law and economics of privacy and reputation, and the law and economics of racial discrimination.

The book is designed to display the power of economics to organize and illuminate diverse fields in the study of nonmarket behavior and institutions. A central theme is the importance of uncertainty to an understanding of social and legal institutions. Another major theme is that the logic of the law, in many ways but not all, appears to be an economic one: that judges, for example, in interpreting the common law, act as if they were trying to maximize economic welfare.

Part I examines the deficiencies of utilitarianism as both a positive and a normative basis of understanding law, ethics, and social institutions, and suggests in its place the economist's concept of "wealth maximization." Part II, an examination of the social and legal institutions of archaic societies, notably that of ancient Greece and primitive societies, argues that economic analysis holds the key to understanding such diverse features of these societies as reciprocal gift-giving, blood guilt, marriage customs, liability rules, and the prestige accorded to generosity. Many topics relevant to modern social and philosophical debate, including the origin of the state and the retributive theory of punishment, are addressed. Parts III and IV deal with more contemporary social and jurisprudential questions. Part III is an economic analysis of privacy and the statutory and common law rules that protect privacy and related interests-rules that include the tort law of privacy, assault and battery, and defamation. Finally, Part IV examines, again from an economic standpoint, the controversial areas of racial and sexual discrimination, with special reference to affirmative action. Both Part III and Part IV develop as a subtheme the issue of proper standards of constitutional adjudication by the Supreme Court.

In this timely book, the first comprehensive study of the modern American public intellectual--that individual who speaks to the public on issues of political or ideological moment--Richard Posner charts the decline of a venerable institution that included worthies from Socrates to John Dewey. With the rapid growth of the media in recent years, highly visible forums for discussion have multiplied, while greater academic specialization has yielded a growing number of narrowly trained scholars. Posner tracks these two trends to their inevitable intersection: a proliferation of modern academics commenting on topics outside their ken. The resulting scene--one of off-the-cuff pronouncements, erroneous predictions, and ignorant policy proposals--compares poorly with the performance of earlier public intellectuals, largely nonacademics whose erudition and breadth of knowledge were well suited to public discourse. Leveling a balanced attack on liberal and conservative pundits alike, Posner describes the styles and genres, constraints and incentives, of the activity of public intellectuals. He identifies a market for this activity--one with recognizable patterns and conventions but an absence of quality controls. And he offers modest proposals for improving the performance of this market--and the quality of public discussion in America today. This paperback edition contains a new preface and and a new epilogue.