Richard Posner wrote more than 3,300 opinions over nearly 36 years on the Seventh Circuit. He also authored or co-authored over 50 books and published something like 900 journal articles. According to one accounting, Posner averaged 14.7 articles per year over the course of 62 years. He’s the most cited legal scholar of the latter half of the 20th century. Judge Posner died this week in Chicago. He was 87.
One could focus on all the absurd numbers Posner racked up throughout his career. As one of the leading lights of the Law and Economics philosophy, he’d probably find it amusing to see tributes casting his legacy into something fixed and quantifiable. Yet, as the legal community honors Posner’s memory, the outpour of personal and professional anecdotes highlights the limits of a philosophy seeking to turn the world into a series of ticks on a ledger.
Our founding editor, David Lat, put it simply:
I am so, so sorry to learn of the death of Judge Richard Posner. I was honored to call him a friend.
Above the Law and Judge Posner enjoyed a long and delightful relationship. Lat once asked, not entirely joking, whether Posner was the Beyoncé of the federal bench. Posner responded to the suggestion that “I am so pleased to be classified as a mono-monikered visionary.” He gave us interviews, benchslaps to write up, and a cat to run for president. Not sure that last one was constitutional. On the other hand, neither is running for a third term, and no one seems prepared to put a stop to that right now.
I never spoke with Judge Posner myself, but that doesn’t mean I didn’t hear from him from time to time. Over the years, word would filter back to me through people relaying what Posner had thought about some story or other that I’d written. Thankfully, it was mostly positive because there’s a certain nightmarish stress in knowing you’re getting graded by Richard Posner for a seminar you didn’t know you’d enrolled in.
Posner didn’t invent the idea of marrying economics and the law, but he did more than anyone else to shape the philosophy and put it into practice. His Economic Analysis of Law came out in 1973, and law students have been forced to grapple with numbers ever since. The Anglo-American legal tradition ran on vibes for centuries until Posner literally wrote the book (books?) pointing out that every doctrine had a price, every rule was an incentive, and every 1L who went law school because they were bad at math hit a brick wall in Torts.
As a scholar, Posner found a way to explain all manner of legal issues as rooted in economics. He and Elisabeth Landes wrote The Economics of the Baby Shortage, arguing that adoption regulation created a troubling black market by keeping a free market from balancing supply and demand. In Sex and Reason, he outlined a rational-choice account of human sexuality. He wrote economic analyses of Good Samaritans, aging, and the market for federal law clerks.
The baby paper alone has launched a thousand faculty lounge arguments about whether it was brilliant or monstrous. Posner embraced the “monster” label, because he thought the two descriptors tend, historically, to be a package deal.
For better or worse, Law and Economics is everywhere now. From antitrust to contracts to regulatory review, the language of efficiency dominates the conversation. Unfortunately, like any philosophy, it has gone in some disturbing directions. Everyone paying 1000 percent service charges on tickets has reason to be annoyed by the shift in antitrust law toward efficiency at all costs. Even more diabolical is the punitive-minded hijacking of Law and Economics to argue that throwing a lookout in prison and throwing away the key is good actually.
Posner didn’t take a zealot’s approach to the philosophy, though. When the 2008 financial crisis hit, he wrote a book called A Failure of Capitalism. Getting locked into dogma would betray his fundamentally scholarly approach.
He carried that approach to the bench, where he also refused to stay in whatever box anyone built for him.
Ronald Reagan put him on the Seventh Circuit in 1981. As the conservative legal movement began its decades-long takeover of the federal judiciary, Posner embraced heterodoxy. He tore apart Indiana and Wisconsin’s same-sex marriage bans, first at oral argument and then in an opinion that Slate’s Mark Joseph Stern described as “a witty, deeply moral masterpiece.” Posner penned a scathing takedown of the Supreme Court’s conservatives and feuded publicly with Justice Scalia, in a fight that got ugly enough that Scalia accused him of lying.
Posner told an interviewer in 2013 that he had no desire to join a Supreme Court that “isn’t a real court.” Looking at the bench right now, Posner seems downright prophetic.
Gus Hurwitz, Senior Fellow and Academic Director of the UPenn Center for Technology, Innovation, and Competition, offered another humanizing tribute:
Lots to be said. He was a giant. A generous giant. A giant in whose shadow many of us toil and on whose shoulders we all stand.
But I’ll never forget the Greenberg Seminar I took with him at Chicago, on Utopias and Dystopias. For one class we watched the Matrix and Brazil (and read some Baudrillard). The class turned into a bit of a debate between me and [Posner] over whether Brazil or The Matrix is the better film — he loved The Matrix and I love Brazil. I was really just trying to defend Brazil, not to argue its superiority to The Matrix. At least some people came away from that class thinking I had won the day.
In any event, that was the highlight of my Chicago Law career, bar none.
Not only was the man a legend. He was a goofball. And fun.
Never forgotten, but, now, missed. RIP.
That’s a prophet of Chicago School economics and a Reagan appointee, assigning Terry Gilliam, the Wachowskis, and Jean Baudrillard. Compare that to what passes for Republican intellectual life in 2026. Just this week, Defense Secretary Pete Hegseth went on a rant about banning continental philosophy from the military. Another mile marker in the Pentagon’s war on intellectualism that has already barred service members from attending Harvard, Princeton, Columbia, and other elite schools and purged books from the service academies. Meanwhile, the leading Reagan-era conservative mind was reading Baudrillard in his spare time.
Posner’s unwillingness to accept a dogmatic worldview also made him one of the most eloquent critics of originalism.
In Hively v. Ivy Tech Community College, the Seventh Circuit held that Title VII’s ban on sex discrimination covers discrimination based on sexual orientation, Posner joined the en banc majority, but wrote separately to lay out a more honest and moral philosophy of judicial interpretation. Objecting to the semantic games the majority required to get to its result, Posner admitted that the “original meaning” of the statute in 1964 would not have contemplated protecting LGBTQ rights:
Had I been asked then whether I had ever met a male homosexual, I would have answered: probably not; had I been asked whether I had ever met a lesbian I would have answered “only in the pages of A la recherche du temps perdu.”
But then he explained why no one should want a legal system that cares about that. His concurrence lays out a theory of interpretation that gives an old text “a meaning that infuses the statement with vitality and significance today.” He dubbed it “judicial interpretive updating,” and pointed out that everyone already does it — including the originalists who swear they don’t — and said the judiciary would be better off embracing this unspoken approach. He included a jab at Heller along the way:
Or how the Second Amendment, which as originally conceived and enacted was about arming the members of the state militias (now the National Guard), is today interpreted to confer gun rights on private citizens as well.
The right largely won the public relations war against the “living Constitution.” Most of the left ran from it because they couldn’t muster much of a defense beyond “because we like the result.” It took this Reagan-appointed judge to lay out an intellectual case for interpreting text — constitutionally or statutorily — as expressing values with meaning informed by the present.
an interpretation that cannot be imputed to the framers of the statute but that we are entitled to adopt in light of (to quote Holmes) “what this country has become,” or, in Blackstonian terminology, to embrace as a sensible deviation from the literal or original meaning of the statutory language.
Words may express value judgments and meanings that the framers couldn’t have put in words themselves? Sounds like the sort of guy who reads continental philosophy. Understanding what a text means to the people living under it today isn’t a corruption of the judicial role, it’s the point of the judicial role:
I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of “sex discrimination” that the Congress that enacted it would not have accepted… We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963-1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.
Three years later, the Supreme Court reached the same result in Bostock v. Clayton County, though Justice Gorsuch got there insisting he just reads the dictionary better than everyone else — precisely the pretense Posner refused to indulge. Ironically, the dissenters cited Posner’s concurrence to call the majority opinion “a pirate ship” that “sails under a textualist flag.” That sort of misses the point of Posner’s concurrence, but then again, Posner once estimated that the test of the smartest person in the world would include, “estimating the IQs of the Supreme Court Justices in the range 80 to 89.“
When Posner retired abruptly in September 2017, he explained that the principal reason was the federal courts’ treatment of pro se litigants. Most judges retire to golf. Posner retired to pick a fight on behalf of the people with the least power in the building.
“Posner was a great intellect and a great judge,” David Boies told me. “He cared about the law, and he cared about justice. We always needed judges like him, but now more than ever.”
Posner took on the case of William Bond, a pro se litigant whose claim had been dismissed with hardly an explanation, and when the Fourth Circuit demanded that Posner and co-counsel Matthew Dowd sign their names to the brief, they did. When the Fourth Circuit kicked the case (in a remarkably lazy opinion), Boies joined the team to take it to the Supreme Court. A guy who started out representing himself ended up with the former chief judge of the Seventh Circuit and one of the most famous litigators in America on his cert petition. Unfortunately, that luck didn’t materialize into a grant.
To Hurwitz’s other observation, Posner was a goofball.
By his own admission, Posner was “a very big cat person.” Back in 2001, he posed for The New Yorker with his cat Dinah and announced that he had exactly the same personality as his cat, which he described as, among other things, “playful, but with a streak of cruelty.” Dinah’s successor, Pixie, was a Maine Coon who became arguably the legal world’s most famous pet and a frequent commenter on @Posner_Thoughts — a hilarious account back when Twitter was good.
In 2017’s Eike v. Allergan, a case about glaucoma eye drops, the longest paragraph was about cats:
cats prefer to drink out of a fountain (where gravity works for them) rather than out of a bowl (where gravity works against them)
Cats… true believers in seeking out economic efficiencies.
Above the Law, via LawProfBlog and Professor Eric Segall, once floated Pixie for President. When asked after his retirement whether Pixie might make a good Supreme Court pick, Posner shot that down: “No. Pixie is going to be president.”
Sadly, Posner’s bout with Alzheimer’s had already taken him off the public stage before his death. Professor Orin Kerr wrote a poignant thread back when Posner’s diagnosis first came to light:
A good reminder not to hold back kindness until it’s too late.
“More importantly, he was decent and loving and gentle,” Professor Larry Lessig, who clerked for Posner, wrote of his old boss. “He did not deserve the quiet humility that he carried, always.” Lessig included another personal story about the judge’s humor and grace. After writing some harsh critiques of an early draft of Sex and Reason, Lessig faxed Posner to apologize for his tone. Posner swiftly replied, “Please. I am surrounded by sycophants. The last thing I need is one more.”
But Professor Jamal Greene of Columbia might have the most fitting encapsulation of Posner’s career:
It is perhaps the ultimate tribute that everyone in the legal academy, no matter their views, has strenuously disagreed with something Richard Posner has written, and still they read the next thing. May he rest in peace.
Dick Posner took big intellectual swings and made himself impossible to ignore. And he did it a lot. Not that he can be reduced to a pile of numbers. In fact, this post is approaching 2300 words and it still seems inadequate, but it’s time to hit publish so it’ll have to do its best to stand in for all that could be said. Presumably, Posner would’ve passed along some edits.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.
The post Judge Richard Posner, The Model Of A Scholarly Jurist, Dies At 87 appeared first on Above the Law.
Richard Posner wrote more than 3,300 opinions over nearly 36 years on the Seventh Circuit. He also authored or co-authored over 50 books and published something like 900 journal articles. According to one accounting, Posner averaged 14.7 articles per year over the course of 62 years. He’s the most cited legal scholar of the latter half of the 20th century. Judge Posner died this week in Chicago. He was 87.
One could focus on all the absurd numbers Posner racked up throughout his career. As one of the leading lights of the Law and Economics philosophy, he’d probably find it amusing to see tributes casting his legacy into something fixed and quantifiable. Yet, as the legal community honors Posner’s memory, the outpour of personal and professional anecdotes highlights the limits of a philosophy seeking to turn the world into a series of ticks on a ledger.
Our founding editor, David Lat, put it simply:
I am so, so sorry to learn of the death of Judge Richard Posner. I was honored to call him a friend.
Above the Law and Judge Posner enjoyed a long and delightful relationship. Lat once asked, not entirely joking, whether Posner was the Beyoncé of the federal bench. Posner responded to the suggestion that “I am so pleased to be classified as a mono-monikered visionary.” He gave us interviews, benchslaps to write up, and a cat to run for president. Not sure that last one was constitutional. On the other hand, neither is running for a third term, and no one seems prepared to put a stop to that right now.
I never spoke with Judge Posner myself, but that doesn’t mean I didn’t hear from him from time to time. Over the years, word would filter back to me through people relaying what Posner had thought about some story or other that I’d written. Thankfully, it was mostly positive because there’s a certain nightmarish stress in knowing you’re getting graded by Richard Posner for a seminar you didn’t know you’d enrolled in.
Posner didn’t invent the idea of marrying economics and the law, but he did more than anyone else to shape the philosophy and put it into practice. His Economic Analysis of Law came out in 1973, and law students have been forced to grapple with numbers ever since. The Anglo-American legal tradition ran on vibes for centuries until Posner literally wrote the book (books?) pointing out that every doctrine had a price, every rule was an incentive, and every 1L who went law school because they were bad at math hit a brick wall in Torts.
As a scholar, Posner found a way to explain all manner of legal issues as rooted in economics. He and Elisabeth Landes wrote The Economics of the Baby Shortage, arguing that adoption regulation created a troubling black market by keeping a free market from balancing supply and demand. In Sex and Reason, he outlined a rational-choice account of human sexuality. He wrote economic analyses of Good Samaritans, aging, and the market for federal law clerks.
The baby paper alone has launched a thousand faculty lounge arguments about whether it was brilliant or monstrous. Posner embraced the “monster” label, because he thought the two descriptors tend, historically, to be a package deal.
For better or worse, Law and Economics is everywhere now. From antitrust to contracts to regulatory review, the language of efficiency dominates the conversation. Unfortunately, like any philosophy, it has gone in some disturbing directions. Everyone paying 1000 percent service charges on tickets has reason to be annoyed by the shift in antitrust law toward efficiency at all costs. Even more diabolical is the punitive-minded hijacking of Law and Economics to argue that throwing a lookout in prison and throwing away the key is good actually.
Posner didn’t take a zealot’s approach to the philosophy, though. When the 2008 financial crisis hit, he wrote a book called A Failure of Capitalism. Getting locked into dogma would betray his fundamentally scholarly approach.
He carried that approach to the bench, where he also refused to stay in whatever box anyone built for him.
Ronald Reagan put him on the Seventh Circuit in 1981. As the conservative legal movement began its decades-long takeover of the federal judiciary, Posner embraced heterodoxy. He tore apart Indiana and Wisconsin’s same-sex marriage bans, first at oral argument and then in an opinion that Slate’s Mark Joseph Stern described as “a witty, deeply moral masterpiece.” Posner penned a scathing takedown of the Supreme Court’s conservatives and feuded publicly with Justice Scalia, in a fight that got ugly enough that Scalia accused him of lying.
Posner told an interviewer in 2013 that he had no desire to join a Supreme Court that “isn’t a real court.” Looking at the bench right now, Posner seems downright prophetic.
Gus Hurwitz, Senior Fellow and Academic Director of the UPenn Center for Technology, Innovation, and Competition, offered another humanizing tribute:
Lots to be said. He was a giant. A generous giant. A giant in whose shadow many of us toil and on whose shoulders we all stand.
But I’ll never forget the Greenberg Seminar I took with him at Chicago, on Utopias and Dystopias. For one class we watched the Matrix and Brazil (and read some Baudrillard). The class turned into a bit of a debate between me and [Posner] over whether Brazil or The Matrix is the better film — he loved The Matrix and I love Brazil. I was really just trying to defend Brazil, not to argue its superiority to The Matrix. At least some people came away from that class thinking I had won the day.
In any event, that was the highlight of my Chicago Law career, bar none.
Not only was the man a legend. He was a goofball. And fun.
Never forgotten, but, now, missed. RIP.
That’s a prophet of Chicago School economics and a Reagan appointee, assigning Terry Gilliam, the Wachowskis, and Jean Baudrillard. Compare that to what passes for Republican intellectual life in 2026. Just this week, Defense Secretary Pete Hegseth went on a rant about banning continental philosophy from the military. Another mile marker in the Pentagon’s war on intellectualism that has already barred service members from attending Harvard, Princeton, Columbia, and other elite schools and purged books from the service academies. Meanwhile, the leading Reagan-era conservative mind was reading Baudrillard in his spare time.
Posner’s unwillingness to accept a dogmatic worldview also made him one of the most eloquent critics of originalism.
In Hively v. Ivy Tech Community College, the Seventh Circuit held that Title VII’s ban on sex discrimination covers discrimination based on sexual orientation, Posner joined the en banc majority, but wrote separately to lay out a more honest and moral philosophy of judicial interpretation. Objecting to the semantic games the majority required to get to its result, Posner admitted that the “original meaning” of the statute in 1964 would not have contemplated protecting LGBTQ rights:
Had I been asked then whether I had ever met a male homosexual, I would have answered: probably not; had I been asked whether I had ever met a lesbian I would have answered “only in the pages of A la recherche du temps perdu.”
But then he explained why no one should want a legal system that cares about that. His concurrence lays out a theory of interpretation that gives an old text “a meaning that infuses the statement with vitality and significance today.” He dubbed it “judicial interpretive updating,” and pointed out that everyone already does it — including the originalists who swear they don’t — and said the judiciary would be better off embracing this unspoken approach. He included a jab at Heller along the way:
Or how the Second Amendment, which as originally conceived and enacted was about arming the members of the state militias (now the National Guard), is today interpreted to confer gun rights on private citizens as well.
The right largely won the public relations war against the “living Constitution.” Most of the left ran from it because they couldn’t muster much of a defense beyond “because we like the result.” It took this Reagan-appointed judge to lay out an intellectual case for interpreting text — constitutionally or statutorily — as expressing values with meaning informed by the present.
an interpretation that cannot be imputed to the framers of the statute but that we are entitled to adopt in light of (to quote Holmes) “what this country has become,” or, in Blackstonian terminology, to embrace as a sensible deviation from the literal or original meaning of the statutory language.
Words may express value judgments and meanings that the framers couldn’t have put in words themselves? Sounds like the sort of guy who reads continental philosophy. Understanding what a text means to the people living under it today isn’t a corruption of the judicial role, it’s the point of the judicial role:
I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of “sex discrimination” that the Congress that enacted it would not have accepted… We should not leave the impression that we are merely the obedient servants of the 88th Congress (1963-1965), carrying out their wishes. We are not. We are taking advantage of what the last half century has taught.
Three years later, the Supreme Court reached the same result in Bostock v. Clayton County, though Justice Gorsuch got there insisting he just reads the dictionary better than everyone else — precisely the pretense Posner refused to indulge. Ironically, the dissenters cited Posner’s concurrence to call the majority opinion “a pirate ship” that “sails under a textualist flag.” That sort of misses the point of Posner’s concurrence, but then again, Posner once estimated that the test of the smartest person in the world would include, “estimating the IQs of the Supreme Court Justices in the range 80 to 89.“
When Posner retired abruptly in September 2017, he explained that the principal reason was the federal courts’ treatment of pro se litigants. Most judges retire to golf. Posner retired to pick a fight on behalf of the people with the least power in the building.
“Posner was a great intellect and a great judge,” David Boies told me. “He cared about the law, and he cared about justice. We always needed judges like him, but now more than ever.”
Posner took on the case of William Bond, a pro se litigant whose claim had been dismissed with hardly an explanation, and when the Fourth Circuit demanded that Posner and co-counsel Matthew Dowd sign their names to the brief, they did. When the Fourth Circuit kicked the case (in a remarkably lazy opinion), Boies joined the team to take it to the Supreme Court. A guy who started out representing himself ended up with the former chief judge of the Seventh Circuit and one of the most famous litigators in America on his cert petition. Unfortunately, that luck didn’t materialize into a grant.
To Hurwitz’s other observation, Posner was a goofball.
By his own admission, Posner was “a very big cat person.” Back in 2001, he posed for The New Yorker with his cat Dinah and announced that he had exactly the same personality as his cat, which he described as, among other things, “playful, but with a streak of cruelty.” Dinah’s successor, Pixie, was a Maine Coon who became arguably the legal world’s most famous pet and a frequent commenter on @Posner_Thoughts — a hilarious account back when Twitter was good.
In 2017’s Eike v. Allergan, a case about glaucoma eye drops, the longest paragraph was about cats:
cats prefer to drink out of a fountain (where gravity works for them) rather than out of a bowl (where gravity works against them)
Cats… true believers in seeking out economic efficiencies.
Above the Law, via LawProfBlog and Professor Eric Segall, once floated Pixie for President. When asked after his retirement whether Pixie might make a good Supreme Court pick, Posner shot that down: “No. Pixie is going to be president.”
Sadly, Posner’s bout with Alzheimer’s had already taken him off the public stage before his death. Professor Orin Kerr wrote a poignant thread back when Posner’s diagnosis first came to light:
A good reminder not to hold back kindness until it’s too late.
“More importantly, he was decent and loving and gentle,” Professor Larry Lessig, who clerked for Posner, wrote of his old boss. “He did not deserve the quiet humility that he carried, always.” Lessig included another personal story about the judge’s humor and grace. After writing some harsh critiques of an early draft of Sex and Reason, Lessig faxed Posner to apologize for his tone. Posner swiftly replied, “Please. I am surrounded by sycophants. The last thing I need is one more.”
But Professor Jamal Greene of Columbia might have the most fitting encapsulation of Posner’s career:
It is perhaps the ultimate tribute that everyone in the legal academy, no matter their views, has strenuously disagreed with something Richard Posner has written, and still they read the next thing. May he rest in peace.
Dick Posner took big intellectual swings and made himself impossible to ignore. And he did it a lot. Not that he can be reduced to a pile of numbers. In fact, this post is approaching 2300 words and it still seems inadequate, but it’s time to hit publish so it’ll have to do its best to stand in for all that could be said. Presumably, Posner would’ve passed along some edits.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news.
