ISSN 1062-7421
Vol. 12 No. 1 (January 2002) pp. 5-8.
FRONTIERS OF LEGAL THEORY by Richard A. Posner. Cambridge, MA: Harvard University Press, 2001. 453 pp. Cloth
$35.00. ISBN: 0-674-00485-X.
Reviewed by Daniel Levin, Department of Political Science, University of Utah.
As a legal theorist and a jurist Richard Posner has attained an odd form of celebrity, as a recent profile in the
NEW YORKER attested. Portraying Posner as a mild mannered homebody with "the distant, omniscient, ectoplasmic
air of the butler in a haunted house," the NEW YORKER declared him "the most mercilessly seditious legal
theorist of his generation" (MacFarquhar 2001: 78). While the journalist followed him, Posner played his preferred
role of provocateur, comparing himself to his cat as being "cold, furtive, callous, snobbish, selfish, and
playful, but with a streak of cruelty," explaining his preference for Nietzsche among philosophers as deriving
from Nietzsche's rejection of ordinary ethics and religion, and demonstrating a fascination with baboons connected
to a larger interest in
sociobiology.
Among students of matters legal, Posner is better known for his relentlessly economic view of life and law, his
preferred form of "sedition" being a willingness to follow neoclassical economic models to their logical
conclusions without regard for popular sentiment. He has been the primary evangelist for the law and economics
movement, writing books, articles, and judicial opinions at a rate that might have given St. Paul feelings of inadequacy,
and alternating economic analyses of antitrust law with no less economically oriented analyses of sexual relations.
The contents of FRONTIERS OF LEGAL THEORY will thus come as no surprise to anyone acquainted with Posner's previous
work. To those with extensive knowledge of Posner's work, FRONTIERS will be doubly familiar, for the book demonstrates
one of Posner's lesser-known interests, recycling. Almost all of the material included in FRONTIERS has appeared
elsewhere, as journal articles, speeches,
conference papers, or book reviews; the acknowledgments, placed at the back of the book, mention a total of 25
previously prepared papers. However,
instead of publishing these pieces as collected essays, Posner has attempted to shape them into a monograph. The
result is somewhere between a single narrative and a collection of essays, with multiple articles merged together
in chapters, and chapters grouped together by subject matter, but with little attempt to link together the different
chapters, and often little thought given to how to integrate the material found within chapters. As a matter of
form, FRONTIERS is not a success. The whole is decidedly less than its parts, and many of Posner's insights are
lost within the incoherence of the larger project.
Given the manner in which Posner has attempted to bring a number of divergent pieces together the book's thesis
is necessarily both weak and vague. Posner's premise is that legal scholarship has become too much the captive
of the law schools and that other disciplines can yield insights in
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the form of legal theory. Unlike jurisprudence, legal theory proceeds from "the outside, using tools from
other disciplines." Posner declares a particular interest in economics, history, psychology, epistemology,
and statistical analysis. However, while the essays contained in FRONTIERS concern questions lying within the domains
of the aforementioned disciplines, Posner is less interested, with the exception of economics, in the actual operation
of their methodological tools or with the philosophies of inquiry that underlie these disciplines. Also, for one
so emphatic on the need to move outside the legal academy, Posner does not stray far from sources to be found in
the law and economics or law and society movements, and in certain cases, particularly history and epistemology,
has little engagement with
current literature within those disciplines. Much of this is because Posner's interests are really very much limited
to legal questions, with the outside disciplines used more as convenient labels rather than as real resources.
It is unclear whether the development of an interdisciplinary theory was a real purpose in (re)writing FRONTIERS
or if it simply provided a useful framework for the ensuing chapters.
This lack of real engagement with the disciplines invoked can be seen in all three of the chapters that Posner
has gathered under the label of "Epistemology." All three concern the rules of evidence, although epistemological
questions could inform a wide variety of other legal questions, perhaps even the foundations of the law and economics
movement. Of the three chapters, one is essentially a review of Janet Malcolm's book on the fraud and perjury trial
of a Virginia lawyer. Though sprinkled with a few footnotes to Wittgenstein, Hume and Nietzsche, there is little
to connect it to larger questions of epistemology as generally understood. The second, "The Principles of
Evidence and the Critique of Adversarial Procedure," is typical Posner, a microeconomic argument regarding
the efficiency of the
adversarial system in defining and considering relevant evidence in trial proceedings. Although Posner cites several
jury studies and several works on probabilistic reasoning in the footnotes, there is again little treatment of
how one comes to "know" something and certainly no sustained treatment of the state of contemporary debates
in epistemology. The third selection, a microeconomic treatment of several sections of the Federal Rules of Evidence,
contains more of the same.
The criticism offered here is not that Posner has somehow failed to become master of several new fields of inquiry,
each of which might qualify as a lifetime pursuit. A survey of his frighteningly large body of published work certainly
demonstrates Posner's abilities as a polymath. The problem is that Posner essentially fails in his own stated purpose,
to make legal theory more interdisciplinary, a project made doubly ironic by his devotion to a particular theoretical
and methodological approach, a form of neoclassical economics of an especially speculative nature. The two microeconomic
analyses of the rules of evidence mentioned above serve as useful illustrations. Even when dealing with questions
that beg for a treatment based in social psychology or the cognitive sciences, not to mention analytic
philosophy, Posner's first instinct is to rely on economic reasoning. A truly interdisciplinary approach would
serve Posner far better and he misses the opportunity to turn the tools of other disciplines on his own law and
economics movement and better ground it through a heightened understanding of its own premises and limitations.
A
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microeconomic analysis of the rules of evidence that also used extensive discussion of cognitive or social psychology
to condition and buttress its arguments would be all the stronger for the effort, and it would also present a far
greater challenge to the insularity of legal philosophy which Posner decries. However, it would no longer be Posner's
vision.
Posner's vision is instead argumentative, caustic, and doggedly rationalistic. These qualities make it more productive
as critique than as positive theory, though it has constructive moments. The second chapter, "The Speech Market,"
proves its value in taking the metaphor of the "marketplace of ideas" seriously and using it to justify
a cautiously libertarian approach to campaign finance, hate speech, and regulation of the Internet. In the course
of the discussion Posner adds a number of asides which make his generally libertarian approach more complex. For
example, he notes that the movement to redefine an increasing number of government
facilities as open public forums only increases the likelihood of privatization, as public ownership incurs the
additional cost of accommodating free speech activities. He considers how the creation of smaller, specialized
audiences on the Internet has allowed for the perception that the medium enables such forms of social and sexual
deviance. His solution is not censorship, but the encouragement of greater governmental monitoring of websites
and chatrooms on the theory that it lessens
information costs and allows better assessment of real threats to public safety, while the public nature of the
Internet provides a counterargument to accusations that such government monitoring is an invasion of privacy or
association. At the same time, Posner also engages in short ideological tangents, many of them unnecessary or misleading.
Addressing the topic of campus hate speech codes, he writes, without further elaboration, that it is "a considerable
mystery why government is in the business of owning and operating colleges and universities in the first place."
Similarly, in discussing campaign finance, he takes aim at the use of union dues for
political campaigns, arguing that, "companies have no corresponding right take money out of their employees'
wages for political uses." Although true, it's not as if corporations lack access to funds for political activities--
funds which might otherwise be available for employee bonuses, or stock dividends; one can hardly claim that current
law "arbitrarily favors unions." However, Posner drops the point quickly anyway.
Despite, or perhaps because of, these asides, Posner's writing remains both entertaining and engaging. Unfortunately,
the format and lack of narrative coherence of FRONTIERS OF LEGAL THEORY will disappoint those who expect Posner's
characteristic readability. One of the worst offenses against narrative coherence occurs in Chapter 3, entitled
"Normative Law and Economics." Posner begins with a consideration of whether economics can generate a
normative political theory. He then segues into a discussion of whether free market economics and tolerance of
income inequality results in greater political stability, which is largely based upon a statistical analysis, published
elsewhere. Although he reproduces some of the results and discusses their interpretation (economic prosperity encourages
political
stability, though it could be the other way around), anyone interested in an explanation of his model and variables
will have to refer to the original article. Just as disappointing, Posner fails to seriously engage with the substantial
political science literature on this subject. This is followed, with no
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explanation or substantive transition, by Posner's comments on a series of conference papers dedicated to the topic
of cost-benefit analysis. The discussion is taken from an article published as part of a journal issue dedicated
to the papers being discussed. The effect on the reader is two-fold, having first been disoriented by the sudden
change of topic, the reader must work through twenty pages of text that will only make sense after a trip to the
library to find the original volume containing the conference papers. In other chapters, the effect is less bewildering,
but still gives the appearance of a copy and paste operation; Chapter 5, entitled "Historicism in Legal Scholarship"
consists entirely of an expansion and combination of separate reviews of books by Bruce Ackerman and Paul Kahn.
The merger provides no new insights that could not be gained from reading the two reviews separately, and the result
provides no real treatment of historicism as a general concept, though the critique of the books reviewed remains
crisp and forceful.
Richard Posner's work is a forceful challenge to orthodoxy and he frequently sparks moments of recognition unlikely
to result from more timid approaches. His most notorious book, SEX AND REASON (1992), was a successful provocation
because of its author's willingness to take chances and follow a particular method of inquiry to its logical, and
illogical, conclusions. FRONTIERS OF LEGAL THEORY, on the other hand, fails in its professed purpose because of
this same vision. A more simply conceived collection of essays would have proved both more readable and, without
the conceit of interdisciplinarity, more true to its core message.
REFERENCES:
MacFarquhar, Larissa. 2001. "The Bench Burner." THE NEW YORKER. December 10, 2001. 78-89.
Posner, Richard. 1992. SEX AND REASON. Cambridge, MA: Harvard University Press.
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Copyright 2002 by the author, Daniel Levin.