Taking Posner Seriously: Sex and Reason

Toward the end of my previous Posner post, which highlighted Oliver Wendell Holmes’s three-paragraph dissent in Lochner v. New York, I shouted out Sex and Reason (1992), perhaps Richard A. Posner’s most controversial work. In short, I was so impressed with Law and Literature that I decided to give some of Posner’s other scholarly tomes a try, including The Problems of Jurisprudence (1990), Overcoming Law (1995), and The Problematics of Moral and Legal Theory (1997). But my favorite Posner book by far was the aforementioned tome on sex, an intellectual tour de force in which Posner surveys the history of sexuality and sexual mores in Western civilization, explores the economics of erotic art and pornography, reviews the legal regulation of sex, and develops a general theory of sexuality. In short, I was won over by the breadth and depth of Posner’s foray into human sexuality–a descriptive diamond in the normative rough of feminist legal scholarship.

But what struck me the most about Sex and Reason was Judge Posner’s morally-neutral or “morally indifferent” analysis of sexuality and sex regulation. (See especially pp. 181-182 of Posner’s sex book.) For Posner, sex should be treated as the moral equivalent of eating: a morally-neutral act. Consider, for example, my decision to add a leaf or two of spinach to my ham-and-egg sandwich sandwich for breakfast. It might be morally wrong of me to consume meat, and bread-baking and the planting, harvesting, and distribution of wheat and other crops might generate negative environmental consequences, but the actual act of me eating a ham-and-egg sandwich for breakfast carries no moral significance whatsoever, like the act of combing my hair or brushing my teeth, or in the words of Posner: “Few people in modern society consider eating (as long as it is not cannibalistic) an activity charged with moral significance, but everyone recognizes that it is an activity to be conducted with due regard … of health, expense, time, and seemliness.”

Although I disagree with Posner about the moral-neutral status of eating, the possibility of a morally-neutral analysis of sex struck such a deep chord with me that it inspired me to research and write my first major paper: “Domestic Violence, Strategic Behavior, and Ideological Rent-Seeking” (2006). (By this time, I had published only two minor works: one on the history of Puerto Rico citizenship (see here), which was based on research I had done when I was a student at Yale; the other (here) describing a special conference on Bush v. Gore that my law school had hosted in February of 2001.) The seeds of my 2006 paper were planted during a panel on Caribbean legal trends that took place at the Caribe Hilton in San Juan, Puerto Rico in the summer of 2004. At this academic panel, a feminist law professor (the late María Dolores Fernós) denounced the increase in domestic violence incidents on the Island and urged the Puerto Rico Government to take more aggressive actions to reduce such violence. This plea for help resonated with me, for there was indeed a significant increase in domestic violence cases as measured in the amount of persons, mostly women, requesting protection orders.

But this steady and inexorable increase in domestic violence cases on the Island of Puerto Rico posed an important empirical puzzle, a puzzle that my moralistic feminist colleagues somehow overlooked. To the point, the Commonwealth of Puerto Rico had adopted a comprehensive domestic violence law in 1989, so why were domestic abuse cases still on the rise in 2004? Although one would have expected an initial increase in the number of domestic violence complaints when that new law began to take effect, at some point one would also expect the number of such complaints to peak and then level off as potential aggressors begin to internalize the costs of aggression, which I soon discovered was precisely what occurred in the mainland United States, where the overall rate of domestic violence incidents had declined since peaking in 1996. So, why was there no substantial decline or leveling off in Puerto Rico?

I decided tackle this puzzle by extending Posner’s morally-neutral approach to the arena of marital and domestic conflict. Among other things, I conjectured that the increase in domestic violence in Puerto Rico was most likely due to strategic behavior on the part of complainants, and I further conjectured that the passage of domestic violence legislation was the result of “ideological rent-seeking”–a form of rent-seeking behavior that occurs when an organized group or faction uses the political process to extract intangible ideological rents, i.e. the satisfaction of knowing that one’s moral views are reflected in public legislation. In 2005 or so, I submitted my resulting paper (see here) to the Journal of Empirical Legal Studies, a new journal at the time, but my work was rejected for not being empirical enough; in fact, I wasn’t even allowed to present my paper at the annual meeting of the Society for Empirical Legal Studies–no doubt for political and ideological reasons.

Despite this early-career setback, Posner’s morally-neutral approach would recharge my intellectual batteries and radically change the trajectory of my legal scholarship. To the point, I decided to steal Posner’s morally-neutral approach and extend it to other areas of the law, including dispute resolution (see my 2012 paper “The Turing Test and the Legal Process” in which I propose a fast and simple probabilistic method for resolving disputes), litigation (see my 2011 paper “Chance and Litigation” in which I model judicial outcomes as a random coin toss), and Puerto Rico’s colonial status (see my 2008 paper “Is a Post-Colonial Puerto Rico Possible?” in which I model the Puerto Rico status politics as a truel or three-person duel).

My next major contact with Richard Posner would occur in the fall of 2005, when his polemical essay on the 2004 Supreme Court Term was published in the august pages of the Harvard Law Review. Posner’s 71-page survey article “A Political Court” launches a devastating attack against judicial supremacy, a critique that still resonates with me to this day. Posner’s work, however, doesn’t just call out the Supreme Court for its “tendency to behave ‘legislatively'”; it also shows how the High Court has for all practical purposes become a lawless body. I will further describe Posner’s scathing indictment of the justices’ reckless and god-like behavior in my next Posner post.

Image credit: David Michael Miller

About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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2 Responses to Taking Posner Seriously: Sex and Reason

  1. 1.) At some point I need to read Sex and Reason.

    2) I booked marked A Political Court by Posner, I just realized that the The Linchpin Framework of Adjudication is natural corollary of the insights in Posner’s paper. Per your blog post he asserts that the high court has become lawless. I believe that is probably more true than ever. Posner’s paper is now on my reading list.


    3. I always really liked your Domestic violence paper, the fact that it gained no traction is precisely why academia needs to be de-politicized.

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