Judge Posner’s Remarkable New Ideas About Taxation, Regulation, and the Constitution

How to Make Government Work
Aug. 24 2012 5:30 PM

Judge Posner’s Remarkable New Ideas About Taxation, Regulation, and the Constitution

Gary Becker and Richard Posner.
Gary Becker, left, and Richard Posner, right

Courtesy University of Chicago Law School.

Judge Richard Posner is an iconic thinker and jurist, prolific in his writing and his impact. He helped create the intellectual foundation for the “law and economics” theory that is skeptical of government's role in the market. What is remarkable about his thinking is that having seen the consequences of an era of deregulation and of government's withdrawal from market intervention, he is now taking a significantly different approach. Posner now says that:

  1. Market deregulation as a theocracy had devastating consequences and contributed significantly to the financial cataclysm of 2008. Smart re-regulation of financial services is absolutely critical.
  2. Government intervention in areas where externalities impact folks other than the consumer is correct theoretically and often practically. For example, a carbon tax to reduce our consumption of carbon fuels and reduce greenhouse gas emission would be a smart move. Perhaps more surprising, Posner supports New York Mayor Michael Bloomberg's effort to reduce sugary drink consumption by limiting the size of containers in which the drinks may be sold. Obesity and its societal impact merit this limitation on consumer choice, the judge argues.
  3. There is scant evidence to support the notion that raising marginal tax rates to Clinton-era levels would reduce work by people, and the revenue is necessary. The supply-side argument that reduced tax rates will increase revenue simply isn't fact based.
  4. Originalism as an intellectual foundation for constitutional interpretation is a mere gloss over results-oriented jurisprudence. It is not a useful way to make an old but wise document applicable to the modern era.
  5. Corporate governance is failing us. CEOs are running roughshod over their own hand-picked boards of directors. Shareholders have not responded with sufficient energy, and it is hard to imagine that they will.

Wouldn't it be wonderful if the politicians who publicly embrace and promote the worldview of deregulatory theocracy and supply-side economics listened to one of their own intellectual leaders?

Posner is free to evolve on these issues because he does not profit from the current financial climate, and he isn’t beholden to it. He is simply making thoughtful conclusions by looking at evidence. My challenge to Republicans: Look at the facts. We all can't be as smart as Posner. But we all can think for ourselves.

Eliot Spitzer, the former governor of the state of New York, hosts Viewpoint on Current TV. Follow @eliotspitzer on Twitter.



Don’t Worry, Obama Isn’t Sending U.S. Troops to Fight ISIS

But the next president might. 

The Extraordinary Amicus Brief That Attempts to Explain the Wu-Tang Clan to the Supreme Court Justices

Amazon Is Officially a Gadget Company. Here Are Its Six New Devices.

The Human Need to Find Connections in Everything

It’s the source of creativity and delusions. It can harm us more than it helps us.

How Much Should You Loathe NFL Commissioner Roger Goodell?

Here are the facts.

Altered State

The Plight of the Pre-Legalization Marijuana Offender

What should happen to weed users and dealers busted before the stuff was legal?

Surprise! The Women Hired to Fix the NFL Think the NFL Is Just Great.

You Shouldn’t Spank Anyone but Your Consensual Sex Partner

Sept. 17 2014 5:10 PM The Most Awkward Scenario in Which a Man Can Hold a Door for a Woman
  News & Politics
Altered State
Sept. 17 2014 11:51 PM The Plight of the Pre-Legalization Marijuana Offender What should happen to weed users and dealers busted before the stuff was legal?
Business Insider
Sept. 17 2014 1:36 PM Nate Silver Versus Princeton Professor: Who Has the Right Models?
Sept. 17 2014 6:53 PM LGBTQ Luminaries Honored With MacArthur “Genius” Fellowships
  Double X
The XX Factor
Sept. 17 2014 6:14 PM Today in Gender Gaps: Biking
  Slate Plus
Slate Fare
Sept. 17 2014 9:37 AM Is Slate Too Liberal?  A members-only open thread.
Brow Beat
Sept. 17 2014 8:25 PM A New Song and Music Video From Angel Olsen, Indie’s Next Big Thing
Future Tense
Sept. 17 2014 9:00 PM Amazon Is Now a Gadget Company
  Health & Science
Medical Examiner
Sept. 17 2014 11:48 PM Spanking Is Great for Sex Which is why it’s grotesque for parenting.
Sports Nut
Sept. 17 2014 3:51 PM NFL Jerk Watch: Roger Goodell How much should you loathe the pro football commissioner?