Overcoming Law [Paperback]

The Honorable Richard A. Posner (Author)

Book Description

ISBN-10: 0674649265 | ISBN-13: 978-0674649262 | Publication Date: October 1, 1996

Legal theory must become more factual and empirical and less conceptual and polemical, Richard Posner argues in this wide-ranging new book. The topics covered include the structure and behavior of the legal profession; constitutional theory; gender, sex, and race theories; interdisciplinary approaches to law; the nature of legal reasoning; and legal pragmatism. Posner analyzes, in witty and passionate prose, schools of thought as different as social constructionism and institutional economics, and scholars and judges as different as Bruce Ackerman, Robert Bork, Ronald Dworkin, Catharine MacKinnon, Richard Rorty, and Patricia Williams. He also engages challenging issues in legal theory that range from the motivations and behavior of judges and the role of rhetoric and analogy in law to the rationale for privacy and blackmail law and the regulation of employment contracts. Although written by a sitting judge, the book does not avoid controversy; it contains frank appraisals of radical feminist and race theories, the behavior of the German and British judiciaries in wartime, and the excesses of social constructionist theories of sexual behavior.

Throughout, the book is unified by Posner's distinctive stance, which is pragmatist in philosophy, economic in methodology, and liberal (in the sense of John Stuart Mill's liberalism) in politics. Brilliantly written, eschewing jargon and technicalities, it will make a major contribution to the debate about the role of law in our society.

Editorial Reviews

Review

Judge Posner's book...is about the economics of practicing and studying law: the incentives and disincentives faced by judges, lawyers and law professors. The book describes the legal profession as a collapsing cartel, a decadent guild coming to terms with market competition...It is by far the best--the most scholarly, the most thoughtful, as well as the sharpest and most provocative--of the current crop of commentaries on the plight of law today.
--Jeremy Waldron (New York Times Book Review )

Overcoming Law collects Richard Posner's major articles and essays from recent years. While the book is an assemblage of smaller pieces, "it is meant to be read consecutively" and in fact lays out a distinct and formidable theme: a view of law Posner describes as "pragmatic" rather than formalistic or ideological...One lingering aftertaste of the book is that political and intellectual labels in our time have been degraded almost beyond recognition. Another, and stronger, is that Posner is the real thing: a philosopher and intellectual who despite his immense learning has retained a strong sense of the humane and the decent. If that is pragmatism, then we need more of it.
--Paul Reidinger (ABA Journal )

Reflecting the breadth of the author's interest, the book ranges widely through the law and beyond...Posner is clearer here than in any of his previous work that there is--that there must be--more to the practice of judging than economics, or any similarly formal deductive system, can provide...His ideas are surely worth a look.
--David G. Post (Reason )

Overcoming Law takes the reader on a dazzling intellectual tour. Judge Richard Posner offers fascinating commentary on subjects ranging from the law of medieval Iceland to the legal community of the contemporary South Bronx. His interests range from the organization of legal services to the economics of homosexuality. Moreover, Posner is an exceptionally accessible and civil guide to this remarkable range of legal concerns.
--Mark A. Graber (Law and Politics Book Review )

A dazzling collection of recent essays...Richard Posner is the most prolific and creative judge now sitting on the federal bench. The essays in Overcoming Law, like everything he writes, are exhilarating in their range and wit and candor.
--Jeffrey Rosen (Yale Law Journal )

Overcoming Law is an extraordinary book, brimming with stimulating ideas on almost every page. I couldn't put it down. The book will trigger some significant national debates, especially given the blazing attacks the author delivers on the limitations of contemporary legal education and the deficiencies of contemporary legal thought, including that manifested by the Supreme Court. In breadth of interest, he can be compared only to people like Holmes, William O. Douglas, Jerome Frank, and Joseph Story.
--Sanford Levinson, University of Texas at Austin Law School

Overcoming Law is as good as anything being written about law and legal scholarship today. The essays go for the intellectual jugular; they're sometimes devastatingly witty; and on occasion, even passionate. Posner is a towering figure in American law, both as a judge and as a scholar, and one of his greatest merits has been his capacity for intellectual growth. This book demonstrates a major development in his thought.
--Daniel Farber, University of Minnesota Law School

Review

Overcoming Law is an extraordinary book, brimming with stimulating ideas on almost every page. I couldn't put it down. The book will trigger some significant national debates, especially given the blazing attacks the author delivers on the limitations of contemporary legal education and the deficiencies of contemporary legal thought, including that manifested by the Supreme Court. In breadth of interest, he can be compared only to people like Holmes, William O. Douglas, Jerome Frank, and Joseph Story. (Sanford Levinson, University of Texas at Austin Law School ) --This text refers to an out of print or unavailable edition of this title.

See all Editorial Reviews

Product Details

• Paperback: 608 pages
• Publisher: Harvard University Press (October 1, 1996)
• Language: English
• ISBN-10: 0674649265
• ISBN-13: 978-0674649262
• Product Dimensions: 9.2 x 6.2 x 1.7 inches
• Shipping Weight: 1 pounds (View shipping rates and policies)
• Average Customer Review: 3.7 out of 5 stars  See all reviews (6 customer reviews)
• Amazon Best Sellers Rank: #98,240 in Books (See Top 100 in Books)
  • #3 in Books > Law > Perspectives on Law > Comparative
  • #72 in Books > Law > One-L > Legal Profession
  • #100 in Books > Law > Philosophy

More About the Author

Richard A. Posner is a judge of the U.S. Court Appeals for the Seventh Circuit, and a senior lecturer at the University of Chicago Law School. He is the author of numerous books, including Overcoming Law, a New York Times Book Review editors' choices for best book of 1995 and An Affair of State: The Investigation, Impeachment, and Trial of President Clinton, one of Times' choices for Best Book of the Year in 1999 and a Los Angeles Times Book Prize Finalist, 2000.

Customer Reviews

Most Helpful Customer Reviews

16 of 18 people found the following review helpful:

4.0 out of 5 stars Great essays. His other books are better., August 16, 2002

By 

Kevin Currie-Knight "Education Grad Student" (Newark, Delaware) - See all my reviews
(VINE VOICE)    (TOP 500 REVIEWER)   

This review is from: Overcoming Law (Paperback)

Another reviewer noted that this is the best intro to Posner. It probably is. The essays here touch on legal reasoning, economics, philosophy of law, sexuality and many other topics, giving the reader a 'survey' view of Posner. Most books of essays, though, have a cohesiveness that I did not detect here, which is fine, so long as the intention is ONLY to get a sampling.

I can not stress enough how phenomenal a writer Judge Posner is. The essays are both challenging and readable; contraversial yet objective. In one, Posner defends his book 'Sex and Reason' against radical feminism. In another he examines Richard Rorty and the impact that modern philosophy has on law. Perhaps the best essay is on pragmatic legal reasoning, entitled "What am I? A potted plant?'.

Besides the lack of cohesion, the biggest reason for the subtracted star is that, while Posner discusses economics, legal method and gender issues, his full length books on the subjects are better. Respectively, they are "The Economics of Justice", "The Problems of Jurisprudence" and "Sex and Reason." For the student of any one of these areas, read those first, read this after. Everyone else, start here!

16 of 18 people found the following review helpful:

5.0 out of 5 stars Judge Posner at his best (or worst?), April 3, 1997

By A Customer

This review is from: Overcoming Law (Paperback)

One of the few works that lives up to expectations! Provides Judge Posner's wonderful insights into almost all subjects touching upon the law while avoiding the rambling style which marred his The Problems of Jurisprudence. Posner once again shows that he does not fear taking controversial positions or picking fights. One of the few books that delivers intellectual meat without losing a sense of humor. Accessible and frank style make it a joy to read. Highly recommended for anyone with even a passing interest in the law, the workings of the judicial system, philosophy, or economics

27 of 34 people found the following review helpful:

4.0 out of 5 stars Readable, even if you do not agree with the Judge, April 27, 2000

By 

Edward G. Nilges "Author, 'Build Your Own .Ne... (Hong Kong, China) - See all my reviews
(REAL NAME)   

This review is from: Overcoming Law (Hardcover)

Judge Posner is in the news these days because he has served as a mediator in the Microsoft trial. He is both a public intellectual and a judge, as well as one of the leading philosophers of the movement in legal theory called "Law and Economics."

This is an admirable record, and one way the judge has built his reputation is by being a prolific and readable writer on law. Overcoming Law is one of the best summaries of his work because as a series of essays, the reader is at liberty to dip into the most interesting topics.

Understanding law and economics is a prerequisite. This is Posner's (and Ronald Coase's) idea that descriptively, judges try to maximize social wealth by allocating to claimants the results that those claimants are most willing to pay for. Prescriptively, to Posner, this is a Good Thing.

Solomon in the Bible acted in a Posnerian fashion because the "good" mother valued her child's life over her possession of the child whereas the bad mother valued her possession over the kid's life. Posner would not say that Solomon saw the abstract good and made a decision according to his conception of the abstract good (which Posner feels can be flawed.) Instead Posner would say that Solomon found a decision procedure which revealed the true values of the claimants.

This makes sense. What makes less sense is that Posner turns Marx's theories on their head, and this is rather dizzying, since Marx turned Hegel on his head. In Posner's ideal world, any atomic business transaction reveals that actor A values product or service P more than B does if B transfers that product or service at price R.

Better critics than I have pointed out that economic actors who are acting close to the bone, such that they must work or trade, or die, may not value their mininum wage more than the service they render. They may value the time highly but sacrifice it anyway as a precondition for their existence. As Kant would say, existence is not a predicate, but a precondition to having predicates. Translated to the economic sphere, existence is not a Yuppie luxury, like an SUV, nor is it a necessity like bread. It is a precondition for having either.

Posner writes, I believe, from the standpoint of the lucky American who has never had to face extinction as a consequence of the economy and this gives his thought a certain lack of heart which is also a failure to think things through.

This is most on display in Posner's essay "Hegel and Employment at Will." Here, Posner speaks directly to legal philosophers including Drucilla Cornell who have made a case, based on the thought of Hegel, for property rights to jobs. Posner's defense of employment at will (which was thought, as recently as 1980, to be an out of date theory) is based on nothing more than an empirical, and questionable, economic claim: that we enjoy higher economic growth in America as a consequence of employment at will.

This is to be misled by the numbers, for many observers of European societies (with their social welfare programs and longer vacations) have pointed out that qualitatively, the consequent higher unemployment in Europe does NOT seem to lead to a high level of misery. In Japan, during the last ten years, that country has been in deep recession, with high unemployment, but qualitative commentators have noticed that the Japanese react differently than Americans have done.

Posner tends to accept high levels of employment which result from churning in the employment market as a good thing. As a sitting judge with probable lifetime tenure, Posner does not see the disruption that results from employment at will...even to businesses themselves.

In general, Posner is a clever and readable ideologue and apologist for Reagan-era ideology. No matter what your views on these changes it is a very good idea to read Judge Posner...if only to be able to spot arguments which use his thought, and to show (as does philosopher Martha Nussbaum) that by their lack of qualitative, and even ethical, reflection, they lack the rationality they claim.