Posner, Richard A.

Richard A. Posner (1939–) is a federal appeals court judge and legal scholar who was one of the founders of the law and economics school of thought in jurisprudence. A graduate of Yale College (B.A., 1959) and Harvard Law School (LL.B, magna cum laude, 1962), he served as president of the Harvard Law Review. After graduating from law school, he clerked for U.S. Supreme Court Justice William J. Brennan Jr. After a brief stint as a law professor at Stanford Law School (1968–1969), in 1969, Posner became professor of law (and then the Lee and Brena Freeman Professor of Law) at the University of Chicago Law School, where he became the founder of the highly influential Journal of Legal Studies. Nominated to the federal bench by President Ronald W. Reagan in 1981, he was confirmed by the U.S. Senate and became a judge on the U.S. Court of Appeals for the Seventh Circuit. He retained an affiliation with the University of Chicago Law School as a Senior Lecturer, teaching part-time. A prolific and engaging author, Posner has produced an impressive body of academic and popular works on topics as varied as intellectual property, law and economics, law and literature, human sexuality, constitutional interpretation, the impeachment of President Bill Clinton, and the economic crisis of 2008.

Posner, however, is best known for his application of economic principles to a variety of issues in jurisprudence and social theory. For example, in tort law, Posner argues that wealth maximization (WM) best accounts for, as well as justifies, the assigning of liability to the party that must provide a remedy to the plaintiff. What he means by WM is not mere financial augmentation, but, rather, the increase of those things and states of affairs that people value, including both monetary and nonmonetary goods.

Posner has applied economic analysis to the Fourth Amendment as well. Consistent with the dominant understanding in the literature, he maintains that the Fourth Amendment's purpose is not to protect the criminal's interest to commit crimes and thus to avoid the punishment of criminal activity. Rather, its purpose is to protect the interests of citizens, including criminals, from being subjects of unlawful invasions, detentions, trespasses, and bodily harms commissioned by agents of the government. Posner argues that tort remedies, rather than the exclusionary rule, are a superior way to secure the interests the Fourth Amendment was intended to protect. He maintains that tort remedies, unlike the exclusionary rule, would not over-deter, for they would be justified by a cost-benefit analysis. Consequently, a tort remedy regime would better protect the interests of citizens and law enforcement while providing incentives for the latter to not violate the fourth amendment. Moreover, it would reduce the cover for some criminal activity that would otherwise go unpunished under an exclusionary rule regime.