Note: This is the third in a series of blog posts in honor of Richard Posner

My independent study of the works of Richard A. Posner began in December of 2000, when I visited a used bookstore called Brand Bookshop in Glendale, California for the very first time–the first of many future visits. It was there, among dozens of law books on the shelves of Brand Bookshop, that I found a pristine first edition of Posner’s Law and Literature: A Misunderstood Relation–the cover of which is pictured below and which is available here, by the way. (As an aside, I remember the month and year of this moment because I was visiting my mother and father during the holidays, right after the Supreme Court had effectively appointed George W. Bush as president, perhaps the worst and most illegitimate decision in SCOTUS history.)

As I mentioned in my previous Posner post, however, I had already formed an unfavorable impression of Posner during my law school days at Yale for purely ad hominem reasons–specifically, because of Posner’s close association with the so-called “Chicago school” and “law & economics” more generally. As a result, when I began my academic career at the Pontifical Catholic University in the summer of 1998, I purposely avoided Posner’s economic oeuvre. But a book about literature intrigued me. At the time, I did not know that Posner had majored in English Literature at Yale, but I had majored in Spanish Literature at UC Santa Barbara, and I was sufficiently open-minded to give Judge Posner another hearing!

Suffice it say that when I finally read Law and Literature: A Misunderstood Relation on my own, my appreciation of Posner’s literary wit and intellectual genius was a true but unexpected revelation. Among other things, Posner’s initial chapter on revenge literature showed me how economics could explain the tit-for-tat logic of such a powerful and dangerous human emotion like vengeance as well as illuminate the ancient history of informal norms regarding retribution. But the passage that made the deepest impact on my intellectual development was Posner’s extended discussion of Oliver Wendell Holmes’ eloquent dissent in the landmark case of Lochner v. New York. (See pp. 266-272 of Posner’s Law and Literature.)

As it happens, I had studied Lochner in law school, and to this day I still remember that this case is supposed to symbolize the dangers of “judicial activism”–an omnipresent danger that was alive and well in 1905, the year Lochner was decided, decades before SCOTUS abolished school prayer, expanded the legal rights of vagrants and criminals, legalized the murder of unborn children, appointed an illegitimate president, and unilaterally legalized gay marriage. Because Posner’s analysis of Lochner marks a turning my point in my intellectual development, I will discuss this great case, Holmes’ dissent in Lochner, and Posner’s brilliant analysis of Holmes’ dissent in my next Posner post.