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Overcoming Law
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.
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.
607 pages, Paperback
First published January 1, 1995
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About the author
Richard A. Posner
130 books181 followersRichard Posner is Senior Lecturer in Law at the University of Chicago Law School.
Following his graduation from Harvard Law School, Judge Posner clerked for Justice William J. Brennan Jr. From 1963 to 1965, he was assistant to Commissioner Philip Elman of the Federal Trade Commission. For the next two years he was assistant to the solicitor general of the United States. Prior to going to Stanford Law School in 1968 as Associate Professor, Judge Posner served as general counsel of the President's Task Force on Communications Policy. He first came to the Law School in 1969, and was Lee and Brena Freeman Professor of Law prior to his appointment in 1981 as a judge of the U.S. Court of Appeals for the Seventh Circuit, where he presided until his retirement on September 2, 2017. He was the chief judge of the court from 1993 to 2000.
Judge Posner has written a number of books, including Economic Analysis of Law (7th ed., 2007), The Economics of Justice (1981), Law and Literature (3rd ed. 2009), The Problems of Jurisprudence (1990), Cardozo: A Study in Reputation (1990), The Essential Holmes (1992), Sex and Reason (1992), Overcoming Law (1995), The Federal Courts: Challenge and Reform (1996), Law and Legal Theory in England and America (1996), The Problematics of Moral and Legal Theory (1999), Antitrust Law (2d ed. 2001), Law, Pragmatism, and Democracy (2003), Catastrophe: Risk and Response (2004), Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (2005), How Judges Think (2008), and A Failure of Capitalism: The Crisis of '08 and the Descent into Depression (2009), as well as books on the Clinton impeachment and Bush v. Gore, and many articles in legal and economic journals and book reviews in the popular press. He has taught administrative law, antitrust, economic analysis of law, history of legal thought, conflict of laws, regulated industries, law and literature, the legislative process, family law, primitive law, torts, civil procedure, evidence, health law and economics, law and science, and jurisprudence. He was the founding editor of the Journal of Legal Studies and (with Orley Ashenfelter) the American Law and Economics Review. He is an Honorary Bencher of the Inner Temple and a corresponding fellow of the British Academy, and he was the President of the American Law and Economics Association from 1995 to 1996 and the honorary President of the Bentham Club of University College, London, for 1998. He has received a number of awards, including the Thomas Jefferson Memorial Foundation Award in Law from the University of Virginia in 1994, the Marshall-Wythe Medallion from the College of William and Mary in 1998, the 2003 Research Award from the Fellows of the American Bar Foundation, also in 2003 the John Sherman Award from the U.S. Department of Justice, the Learned Hand Medal for Exellence in Federal Jurisprudence from the Federal bar Council in 2005, and, also in 2005, the Thomas C. Schelling Award from the John F. Kennedy School of Government at Harvard University.
Following his graduation from Harvard Law School, Judge Posner clerked for Justice William J. Brennan Jr. From 1963 to 1965, he was assistant to Commissioner Philip Elman of the Federal Trade Commission. For the next two years he was assistant to the solicitor general of the United States. Prior to going to Stanford Law School in 1968 as Associate Professor, Judge Posner served as general counsel of the President's Task Force on Communications Policy. He first came to the Law School in 1969, and was Lee and Brena Freeman Professor of Law prior to his appointment in 1981 as a judge of the U.S. Court of Appeals for the Seventh Circuit, where he presided until his retirement on September 2, 2017. He was the chief judge of the court from 1993 to 2000.
Judge Posner has written a number of books, including Economic Analysis of Law (7th ed., 2007), The Economics of Justice (1981), Law and Literature (3rd ed. 2009), The Problems of Jurisprudence (1990), Cardozo: A Study in Reputation (1990), The Essential Holmes (1992), Sex and Reason (1992), Overcoming Law (1995), The Federal Courts: Challenge and Reform (1996), Law and Legal Theory in England and America (1996), The Problematics of Moral and Legal Theory (1999), Antitrust Law (2d ed. 2001), Law, Pragmatism, and Democracy (2003), Catastrophe: Risk and Response (2004), Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (2005), How Judges Think (2008), and A Failure of Capitalism: The Crisis of '08 and the Descent into Depression (2009), as well as books on the Clinton impeachment and Bush v. Gore, and many articles in legal and economic journals and book reviews in the popular press. He has taught administrative law, antitrust, economic analysis of law, history of legal thought, conflict of laws, regulated industries, law and literature, the legislative process, family law, primitive law, torts, civil procedure, evidence, health law and economics, law and science, and jurisprudence. He was the founding editor of the Journal of Legal Studies and (with Orley Ashenfelter) the American Law and Economics Review. He is an Honorary Bencher of the Inner Temple and a corresponding fellow of the British Academy, and he was the President of the American Law and Economics Association from 1995 to 1996 and the honorary President of the Bentham Club of University College, London, for 1998. He has received a number of awards, including the Thomas Jefferson Memorial Foundation Award in Law from the University of Virginia in 1994, the Marshall-Wythe Medallion from the College of William and Mary in 1998, the 2003 Research Award from the Fellows of the American Bar Foundation, also in 2003 the John Sherman Award from the U.S. Department of Justice, the Learned Hand Medal for Exellence in Federal Jurisprudence from the Federal bar Council in 2005, and, also in 2005, the Thomas C. Schelling Award from the John F. Kennedy School of Government at Harvard University.
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Displaying 1 - 5 of 5 reviews
March 1, 2008
A little known fact is that federal judges are limited in the extra-judicial income they're permitted to earn. Earnings from lecturing and speaking are limited, as are earnings from trafficking narcotics and identity theft.
With such commonplace avenues of remuneration foreclosed, federal judges who find themselves in need of additional cash must resign themselves to writing books. And as any student of judicial decision-writing knows, America's judges are masters of plagiarism. Indeed, in law plagiarism is not only acceptable, but deeply institutionalized (cite the incorrect buzz language, and your lawsuit can be thrown out). Judges frequently even plagiarize themselves as a matter of course; such is the mechanism of the common law.
Richard Posner knows this. Hence he is too wily to craft original material for his money-making books, and he even gleefully acknowledges this fact in an eary chapter of Overcoming Law, which conists mostly of recylced law review articles, speeches, and lectures.
Nonetheless, this collection of essays contains many gems. Posner's literary style is lucid and logical, and he approaches intellectual tasks with a transparency and doggedly methodical spirit that typifies that of the genuinely well-intentioned scholar. As Overcoming Law demonstrates, the rewards of such a work ethic are compelling. A characteristically brilliant example is his "economic" analysis of "homosexuality." In that essay, Posner methodically studies the nature of sexual behaviour and preference within the rubric of rational choice. The result is an enlightening, persuasive, and at times amusing acount of why people--who are commonly though to follow their emotions in all things sexual--actually behave in the most brutally rational way when it comes to love and sexuality. His conclusions are bound to be at once amusing and embarassingly revealing.
Not every essay in this book is a dead ringer, but at least half of them are. Any free-thinking individual with a stomach for beginner-level, exploratory philosphizing will be enriched and delighted with this collection of provocative works.
With such commonplace avenues of remuneration foreclosed, federal judges who find themselves in need of additional cash must resign themselves to writing books. And as any student of judicial decision-writing knows, America's judges are masters of plagiarism. Indeed, in law plagiarism is not only acceptable, but deeply institutionalized (cite the incorrect buzz language, and your lawsuit can be thrown out). Judges frequently even plagiarize themselves as a matter of course; such is the mechanism of the common law.
Richard Posner knows this. Hence he is too wily to craft original material for his money-making books, and he even gleefully acknowledges this fact in an eary chapter of Overcoming Law, which conists mostly of recylced law review articles, speeches, and lectures.
Nonetheless, this collection of essays contains many gems. Posner's literary style is lucid and logical, and he approaches intellectual tasks with a transparency and doggedly methodical spirit that typifies that of the genuinely well-intentioned scholar. As Overcoming Law demonstrates, the rewards of such a work ethic are compelling. A characteristically brilliant example is his "economic" analysis of "homosexuality." In that essay, Posner methodically studies the nature of sexual behaviour and preference within the rubric of rational choice. The result is an enlightening, persuasive, and at times amusing acount of why people--who are commonly though to follow their emotions in all things sexual--actually behave in the most brutally rational way when it comes to love and sexuality. His conclusions are bound to be at once amusing and embarassingly revealing.
Not every essay in this book is a dead ringer, but at least half of them are. Any free-thinking individual with a stomach for beginner-level, exploratory philosphizing will be enriched and delighted with this collection of provocative works.
December 3, 2022
It is a very thorough and well-written and exquisitely argued book. The issue that I think a number of folks will have with it, is that he doesn't really provide any constructive "solutions" to the issues that he raises about: (i) legal education; (ii) the business of law; or (iii) the issues of constitutional interpretation. One particular passage late in the book pretty much sums it up, "The razor-sharp logical and polemical skills that we associate with Anglo-American philosophy are great tools of criticism but do not get one very far toward the solution of practical legal problems. . . ."
December 23, 2008
Very good!
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September 23, 2010Overcoming Law by Richard A. Posner (1996)
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September 11, 2011Keep coming back to this: there is so much in it, and something new on each reading.
Displaying 1 - 5 of 5 reviews