My previous Posner post was devoted to my accidental discovery of Richard A. Posner’s Law and Literature: A Misunderstood Relation in December of 2000 and how this tome radically altered my negative Posnerian priors. For me, the most memorable part of Posner’s book was his irreverent analysis of Justice Oliver Wendell Holmes’s dissenting opinion in Lochner v. New York, especially the passage on page 271 (pictured above) where Posner asks what grade Holmes’s dissent might have received on a law school exam in 1905, the year Lochner was decided. After pointing out the many logical flaws in Holmes’s reasoning — how it was not well researched, gets the facts of the case wrong, and launches an unfair ad hominem attack against Herbert Spencer (a best-selling author at the time) — Posner somehow concludes:

“It is not, in short, a good judicial opinion. It is merely the greatest judicial opinion of the last hundred years.”

How could Judge Posner have reached such an extraordinary conclusion given his critical premises? In a word, to paraphrase Holmes himself, because the law is not just about logic; it is also about experience. In a pluralistic place like New York State, different factions will have dramatically different opinions about the wisdom of regulating bakeries (the issue in the Lochner case) and how far those regulations should go. Progressives, for example, will emphasize such goals as health and safety, as well as the need to protect workers from exploitation, while libertarians (i.e. classical liberals like myself) will find such meddlesome regulations paternalistic and counter-productive at best. Holmes’s point, however, is that courts should generally defer to legislatures, for it is not the job of judges to favor one faction over another.

More importantly, Posner’s analysis of Lochner v. New York invites us to further explore the creative and rhetorical aspects of legal reasoning. For Posner, Holmes’s three-paragraph dissenting opinion in Lochner is a minor work of art, a literary jewel that merits inclusion in the Anglo-American literary canon, along with such timeless classics as Lincoln’s Gettysburg Address or the second paragraph of the Declaration of Independence. A law professor in 1905 might have given Holmes’s dissent a C+. An English lit professor, though, would have assigned it an A.

Either way, with my newfound appreciation of Posner’s enormous intellect, I would soon turn my attention to his most controversial work: Sex and Reason. At the time (the early 2000s), I was trying to solve an empirical puzzle relating to domestic violence in the Commonwealth of Puerto Rico, and Sex and Reason would help me see this puzzle in a new light. I will therefore describe my analytical foray through the pages of this titillating and thought-provoking book next week in my upcoming installment of “Taking Posner Seriously.” (In the meantime, I will conclude my review of Tom Bingham’s Rule of Law this weekend.)