The Wayne Gretzky of Appellate Judges
This is the Richard Posner that his biographer sees: empathetic, literary, and unafraid to tell the truth, even about himself. He’s someone who likes cats and Yeats and against-the-grain thinking. The Seventh Circuit Court of Appeals judge—a Law School Senior Lecturer and longtime proponent of law and economics—values hard work and transparency, detests jargon, and actually liked being cold called in law school.
“We know from his opinions how he thinks, how he responds, how he writes, how he shapes law—we can see how a great mind engages with law,” said William Domnarski, the author of the recently released Richard Posner (Oxford University Press), the only full-length biography ever written about the influential judge and famously prolific scholar.
But Domnarski wanted to know more: what is it, he wondered, that makes Posner tick? On a recent visit to the Law School, the lawyer and writer shared some of the insights he gleaned from many months of research.
“He’s someone who has learned to live in the law,” he told the packed classroom. “And he wants people to know how he thinks. He wants you not to just sit next to him—he wants you inside his head.”
Posner, he told the students, isn’t afraid to use exclamation points, a rare bit of judicial punctuation that shows up more than 700 times in Posner’s opinions. He considered studying English literature instead of law, and in high school, Posner once spent several weeks substitute-teaching his own geometry class when his teacher was out sick.
In his quest to unpack the inner workings of Posner’s mind, Domnarski conducted hundreds of interviews, including 14 hours of recorded conversation with Posner. He read hundreds of Posner’s academic articles, dozens of his books, various pieces of his correspondence—and all of his more than 3,000 appellate court opinions at least twice, annotating them and grouping them thematically to uncover common threads.
“More than anything, Posner is a literary person: he brings a literary sensibility that comes out in all sorts of ways, and it’s not just his writing style,” Domnarski said. “It’s that he’s not defined by or cabined by law—he knows that sometimes other ideas have to come in to shape what law is.”
And Posner’s mind is flush with ideas.
“This is a fellow who has all of Shakespeare in his head,” Domnarski said. Martha Nussbaum, the Law School’s Ernst Freund Distinguished Service Professor of Law and Ethics, once asked Posner in a letter if he saw himself in any of the Bard’s characters. He wrote that he had the traits of many, “but I suppose Hamlet most of all, with a little Macbeth, and a fair amount of Coriolanus.” (The Roman military hero Coriolanus, in the Shakespearean tragedy of the same name, rises to power and is ultimately exiled after failing to hide his contempt for Roman citizens and the concept of popular rule).
Of course, the ideas for which Posner is most famous—law and economics—are what brought him to the University of Chicago Law School in 1969. Domnarski described how Posner, during his early academic career at Stanford Law School, came to know law-and-economics giant Aaron Director. Director, who co-founded the Journal of Law and Economics with Nobel laureate and Law School colleague Ronald Coase, kept an office at Stanford after he retired to California. He spent hours in Posner’s office, often perched on the filing cabinet, talking to him about the fledgling discipline. Posner was rapt: he would type furiously, taking notes as he absorbed Director’s teaching.
“It was the beginning of [Posner’s] immersion in law and economics,” Domnarski told the students. It was also the entrée to his University of Chicago career: it was Director who called Law School Dean Phil C. Neal to tell him that he needed to hire Posner.
For Domnarski, a revelatory moment in his research came during an interview with one of Posner’s former high school classmates. Several had already regaled Domnarski with tales of Posner’s teaching stint sophomore year. Although Posner was a student, and young for his grade, the principal asked him to fill in for his geometry teacher—and, remarkably, the other students accepted him.
But even more remarkable, one student told Domnarski, was Posner’s preternatural level of patience and understanding. The student was troubled, and Posner “had a sensitivity that I would expect from a much older, degreed teacher,” the student said.
For Domnarski, the tale seemed to illustrate something that was evident as he studied Posner’s court opinions. “He has this empathy for people with physical frailties … You see it evolve over his career, though he’s had it almost from the beginning—it’s this ability to understand how difficult it might be for someone with physical problems to get through the day.”
Posner, of course, also has tremendous reach. He writes between 90 and 100 opinions a year—and he writes them himself, rather than relying on law clerks. His influence as a scholar and judge is well-known, but Domnarski sought to better quantify it, asking researchers at Westlaw to search their database not just for citations, but for how often judges use his headnotes.
“He had more than double the influence of any other judge,” he said.
Domnarski looked around the room at the students as he made this point. He’d written the book because he wanted to be sure that, generations from now, people would remember the qualities that had helped make Posner a legend.
“Are any of you NHL hockey fans?” Domnarski asked. “There was a time in the 1980s when Wayne Gretzky led the league in scoring … well, [Posner] is the Wayne Gretzky of appellate court judges.”