Richard Posner is a far more distinguished jurist than Thomas Penfield Jackson, who chose him last week to mediate--or attempt to mediate--a settlement in the Microsoft case. Jackson is a well-regarded district court judge. Posner is chief judge of the Seventh Circuit Court of Appeals and the most prominent legal philosopher currently on the federal bench, including the Supreme Court.
So Jackson's choice is a gracious one, but an odd one. Posner is the high prophet of "law and economics," a school of thought that derives legal principles from economic analysis, typically pointing at some established legal doctrine and declaring it nonsense. No area of the law has been more affected by law and economics than antitrust. Posner believes that "predatory pricing" (the monopolist's act of cutting prices to kill competition, as Microsoft is alleged to have done by giving away its Internet Explorer browser) can almost never exist. He has argued for only the narrowest kinds of antitrust remedies in only the narrowest kinds of antitrust cases. Asking Posner to mediate between Microsoft and the Justice Department is a bit like asking Saddam Hussein to oversee elections in Iraq.
But Posner cannot be pigeonholed as an anti-government obsessive. For one thing, he has other obsessions too. As a senior lecturer at the University of Chicago Law School, he teaches two seemingly irreconcilable courses: "Law and Economics," and "Law and Literature." He has authored more than 1,500 judicial decisions, hundreds of articles, and more than two dozen books, including Sex and Reason, Law and Literature, Aging and Old Age and, most recently, An Affair of State: The Investigation, Impeachment, and Trial of President Clinton (1999). His take on the official report: "a splendid libretto by Kenneth Starr, a Greek chorus of television commentators … hapless walk-ons, clandestine comings and goings … a May-December romance."
Some of Posner's greatest intellectual disdain is reserved for the "internationalists, multiculturalists, environmentalists, [and] sometimes vegetarians" on the academic left. He has little time for those who "pity murderers (and penguins, and sea otters, and harp seals) more than fetuses." But Posner's early résumé reads more like that of a vegetarian than a libertarian. He clerked for liberal William Brennan on the U.S. Supreme Court in 1962 at the height of Warren court activism and later worked at the Justice Department under Solicitor General Thurgood Marshall.
Posner's explanation for his change in perspective is disappointingly conventional: He says he was put off by the picketing, sit-ins, and violence he witnessed at Stanford while teaching there in the late '60s. In the spirit of law and economics, we should credit and/or tar him with motives that are more intellectual and/or self-interested than that. Whatever the cause, the transition was complete by 1973, when Posner published his seminal Economic Analysis of Law, shining the light of cost-benefit analysis into every dark corner of the law, from antitrust to racial discrimination to--of course--sex. Reading Posner on any of these subjects makes it difficult to shake off the mental image of the bemused libertarian rooted to the sticky floor of his local Safeway, fiendishly applying his cost-benefit quadratics to the Charmin in one hand and White Cloud in the other--while myriad little Posners hop around at home, praying for his return.
Dahlia Lithwick writes about the courts and the law for Slate, and hosts the podcast Amicus.
Ronald Reagan appointed Posner to the Seventh Circuit in 1981, and he started producing opinions like one in 1986 declaring that an injunction should be granted "if P x H[p] > (1-P) x H[d]." Not surprisingly, critics find Posner's jurisprudence bloodless and ultimately cruel, chasing the logic of free-market capitalism right off the edge of a cliff. A notorious 1978 article suggested making it legal for parents to auction off their unwanted babies to the highest bidders. An essay on rape reads almost like a parody of the substitution of economic for moral reasoning. ("[A]llowing rape would lead to heavy expenditures on protecting women, as well as expenditures on overcoming those protections. The expenditures would be offsetting, and to that extent socially wasted.")
A more appealing aspect of Posner's philosophy is his belief that judges base their opinions on "guesses" and personal ideology, while hiding behind a veil of precedent. He seeks, as did Oliver Wendell Holmes, to "demystify" what courts actually do. It is judicial humility--judges have no access to transcendent moral truth--that leads Posner to economics as a way to cut through legal indeterminacy. Choosing not to feel anyone's pain, he has quite literally found safety in numbers because they are, in his view, morally neutral where pain is not.
In practice, Posner is not so humble. His appellate opinions contain long expository "asides" when he disagrees with the law as handed down by the Supreme Court. A 1996 opinion in which he felt forced to apply an antitrust doctrine he disliked includes the snide observation: "[i]f this is what the [Supreme] Court believes--and it does appear to be the Court's current position, though not one that is easy to defend in terms of economic theory or antitrust policy ..." His expository aside was adopted as the law of the land by the Supreme Court in 1997.
An odd man and an odd choice, but possibly an inspired one as well. After all, the rights and wrongs of the Microsoft case are purely economic. The government made none of the sociological arguments against large and powerful corporations that are sometimes part of the antitrust debate. Has Microsoft's behavior harmed consumers economically by taking too much of their money or slowing the pace of innovation? Is there a remedy that will do more good than harm?
Posner cannot retry the facts or impose a result as a matter of law. But who better to rationally and coldly lay out the costs and benefits of settlement for both Microsoft and the Justice Department? If Posner tells Microsoft that, on this occasion, the government has a point, Microsoft will be hard put to disagree. And if Posner tells the government that whatever tortures it has in mind will do more harm than good, the government will have to listen hard.
Who better to strip away the hubris and slippery moralizing of both sides in this case than the man who really can distill consumer harm down to a decimal point? Like a Vegas bookmaker or a seasoned actuary, Posner will spit out a number at the end of these negotiations and, like a Pentium processor's, Posner's number will be right. Microsoft and Justice can choose to listen to his advice or disregard it. But they won't be able to say they weren't helped with their math homework by the very best.