Richard Posner
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.
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.
