Things Judge Posner Never Studied

December 3rd, 2014

In a series of crowd-sourced questions, courtesy of Ron Collins, Judge Posner weighs in on the (few) things he has not considered. By the principles of expressio unius, I’ll assume Posner has studied everything else.


I never met or had a class from [Lon] Fuller, and never cottoned to his views, and I don’t remember whether I ever read that debate. I never took a course on jurisprudence and I don’t think I had any interest in it. As an academic I became interested in it and wrote about it.

Alternative Dispute Resolution in international matters:

I don’t know; I haven’t studied the issue, and have only a few cases.

Judicial decision-making in foreign judiciaries:

I don’t know much about foreign judiciaries, except the U.K.’s. I assume judicial decision-making varies primarily with the structure of the judiciary. In the inquisitorial systems the structure is bureaucratic; judges are appointed right after or shortly after graduation from law school (more precisely from a college major in law) to a junior judicial post and are promoted in accordance with how they are evaluated by their superiors. Procedure is informal, documentary evidence is strongly preferred, deference to legislatures greater because the legislators tend to be better disciplined. But these are just impressions.

That judicial papers are private!

I didn’t know it was our private property! I agree it should belong to the government and I have always assumed it did belong to it. I certainly wouldn’t claim any property right in the paper or electronic documents in my case files or archived e-mail. However, I think whoever the custodian is should protect certain confidences, especially communications between judges.

Posner has no plans for his papers.

No plans.

Whether corporations should have constitutional rights:

I don’t know whether corporations should have any constitutional rights, although in truth I’ve never thought about the issue. I should think that the constitutional rights of persons employed by, owners of, creditors of, etc. would be adequate to protect legitimate business interests. But as I said, I haven’t thought about the question.

This response is odd, because two questions earlier he said the idea that free speech protects “spending money to influence elections” has “no constitutional or pragmatic basis.” He may have meant spending by individuals, but this question would seem to entail corporate spending.

The free-speech clause of the First Amendment has no real content, owing to its brevity, and society has changed too much since 1791 to enable any guidance to be obtained from practices relating to speech in that era. The idea that free speech protects burning the American flag,spending money to influence elections, harassing abortion clinics (the recent McCullen decision) (to choose just three of many possible examples) has no constitutional or pragmatic basis that I can see, and just reflects the political preferences of particular Justices.

Posner never considered the abrogation of state sovereign immunity under Article 1 powers:

I haven’t thought about your question. I find it a little difficult to take seriously the notion of state “sovereign” powers. I recognize that the Constitution gives the states some attributes of sovereignty, but they have to be very limited to enable the society to function effectively. This is a single country to an extent it was not when the Constitution was originally ratified. The Fourteenth Amendment greatly, and I think rightly, curtailed state sovereignty.

Posner has no thoughts on how the “pressure on costs of legal education will affect subsidization of the scholarly work of law professors?”

I don’t know.