- Paperback: 608 pages
- Publisher: Harvard University Press; Reprint edition (October 1, 1996)
- Language: English
- ISBN-10: 0674649265
- ISBN-13: 978-0674649262
- Product Dimensions: 6.4 x 1.5 x 9.5 inches
- Shipping Weight: 1 pounds
- Average Customer Review: 6 customer reviews
- Amazon Best Sellers Rank: #1,407,132 in Books (See Top 100 in Books)
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Overcoming Law Reprint Edition
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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)
About the Author
Richard A. Posner is Circuit Judge, the United States Court of Appeals for the Seventh Circuit, and a senior lecturer at the University of Chicago Law School.
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I'll return to that point shortly. `Overcoming Law' is a collection of essays, mostly already published book reviews, to which Posner added much new material and re wrote some of the old. The result is a tour de force of breathtaking intellectual scope and penetrating analysis. Posner ranges from offering an economic-psychological account of Judges to discussing homosexuality in ancient Athens; from a critique of modern constitutional theorists to discerning legal thought in E.M Forester's novel Howards End. Posner is a brilliant writer, managing to simplify complex issues and keeps his 597 page book a page turner. That is not to say that it's all easy; Posner's an intense and subtle thinker, and I for one need to reread some of the more theoretical chapters.
Posner offers devastating critiques of intellectuals and thinkers left and right - but mainly left. Although Posner is invariably civil and respectful even to people he completely disagrees with, he seems occasionally biased to the Right. Compare his devastating analysis of Martha Minow's book about the disabled and the Law Making All the Difference: Inclusion, Exclusion, and American Law (chapter 12), with his discussion of Robert Bork's The TEMPTING OF AMERICA (chapter 9). Minow is making a good faith attempt to deal with difficult issues, although Posner is correct in noting that she's too Utopian; Bork's approach is, "militant[t] and dogmati[c]" (p. 241). Furthermore, because Bork's views are not really derived from Original Understanding, Bork is either self deluded or simply lying. And yet Posner compares Minow to a fruitcake who seeks refuge in an imaginary world of the Stone Ages. Bork on the other hand "should have been confirmed and would have been an outstanding Justice" (p. 230, n). (Full disclosure, I've read neither book).
And yet, Posner is not really right wing, except economically. If he were to construct a "comprehensive theory of the rights that the constitution should be deemed to recognize" he tells us, he would "come out closer to [Liberal legal philosopher Ronald] Dworkin than many would expect" unless they are familiar with the full range of his writing (pp. 175-176). Posner is the true, 19th century liberal (and I mean this in the best sense of the word) - believing in a wide scope for personal freedom in the political, economic and social spheres.
In my review of `Sex and Reason' I discussed how I thought economic analysis of the law can offer us an objective way of interpreting the law that would promote social welfare. For Posner, the purpose of `Overcoming Law' is similar, but narrower and less ambitious: he wants to "nudge the judicial game a little closer to the science game" (p.8). That is, to make Judging and Jurisprudence more empirical.
Since Posner is able to apply the economic analysis of the law to such a wide array of issues, not only Commercial Law but also criminal law and the regulation of sexuality, why does he settle for such modest goals? Given the triumphs of scientific methods in other fields of inquiry (and Posner is very much pro-science), and given the emptiness of traditional, so-called "Bottom Up" legal reasoning, which Posner calls "spurious" (p. 177), why not call for the wholesale substitution of scientific for legalistic inquiry?
I'm not sure. One possibility is that Posner thinks that such a substitution is too ambitious - it can't happen given the institutional constrains on the law. Maybe - but scientific methods are now commonplace in most fields of inquiry, in both the social and the natural science. Why not the law?
In Posner's discussion of the Philosophy of Richard Rorty, Posner seems to accept Rorty's skeptical outlook towards science. It's a subtle thing, and I cannot hope to capture Posner's views in any nuanced form in this review. Yet perhaps the difference between my ambitious dream and Posner's cautious one is that Posner is a shade more relativistic then I am. He writes: "theories can never be shown to be true, but only to be false, or useful, or both." (p.450). One can hear echoes of the Falsification philosophy of Karl Popper in this sentence. Yet the dichotomy is false. We can never be absolutely certain that any theory is true; but we can never be absolutely certain a theory is false, either. It is always possible that something other than the theory falsifies the experiment (if we want an extreme example, a Descartesian malicious demon can be playing with our observations) similarly, we can never be absolutely certain that a theory is useful either (if for no other reason, the statement that theory x is useful is a theory also). But we can be (in legalese) certain beyond any reasonable doubt that a theory is true, or false, or useful. Just conceivably, the difference between Posner's most genteel relativism and my insecure realism is the root of the difference between our judicial philosophies.
`Overcoming Law' is a brilliant and varied book. It does assume, however, a certain amount of familiarity with Legal philosophy and practice, particularly American. The chapter in which Posner answers criticism to his `Sex and Reason' is of limited interest even to those who have read his book, and of no interest to those who haven't. Thus for the uninitiated, I would recommend `Sex and Reason' first; but for those familiar with the challenging and exciting scholarship of Judge Posner, `Overcoming Law' is a must.
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!
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.