prior probability

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.)

On this day (2 March) in 1824, the Supreme Court of the United States announced its landmark decision in Gibbons v. Ogden (see also here), which forbade States from enacting protectionist legislation, i.e. local laws that interfere with the power of Congress to regulate interstate commerce.

Pictured below are the short-essay questions in my module on “The Common Law”. The first question asks students to explain what did the great North American jurist and legal scholar Oliver Wendell Holmes mean when he wrote, “The life of the law has not been logic; it has been experience,” perhaps the most famous quote about the common law of all time.

Below the fold is ChatGPT’s response to this very question:

On the strength of this review by the Amazing Tyler Cowen, I ordered and read The Guest Lecture, a magnificent piece of “intellectual fiction” about the world of academia by one Martin Riker, who teaches English literature at Washington University in St Louis. Ignore the lame blurb on the book’s cover (pictured below); the centerpiece of this dreamlike novel is a fascinating seven-page essay by John Maynard Keynes, “Economic Possibilities for Our Grandchildren”, which was first published in 1930 and which you can read for yourself here.

What does GPT-3 a/k/a ChatGPT think about the Wuhan lab-leak theory? In light of this Wall Street Journal report describing how officials at the FBI and the Department of Energy recently concluded with varying degrees of confidence that it was an accidental lab leak in Wuhan that most likely triggered the Covid pandemic, I asked the popular AI chatbot to weigh in. Alas, as of this writing (27 February 2023), the cutoff date of the data used to train the GPT-3 large language model is September 2021, so the chatbot still tows the official line that is was wild bats, not sloppy scientists, who caused the outbreak.

My favorite part of this all-time classic starts 55 seconds in and goes on from there until the end, but the jam around the three-minute mark is especially spicy!

Hello folks, today (Feb. 25) is my half-birthday! After a short hiatus this weekend, I will get back to it in the month of March. Among other things, I will continue my “Taking Posner Seriously” series , wrap up my review of Rule of Law by Tom Bingham (I have reviewed the first 7 of 12 chapters of Bingham’s book thus far), and revisit my “Truth Markets” paper (I received a great deal of critical but excellent feedback from no less than five colleagues since I first posted “Truth Markets” to SSRN on 16 January).

Thus far, I have reviewed the first six chapters of Rule of Law by Tom Bingham and have identified a host of problems–logical fallacies, omissions, and blind spots–with Judge Bingham’s work. The next chapter, Chapter 7, which is devoted to “human rights” and which forms the longest part of Bingham’s book, will be no exception. Judge Bingham begins this chapter by stating that “the law must afford adequate protection of fundamental human rights”, while the rest of this chapter then surveys a series of such rights, but there are three fatal flaws with Bingham’s analysis.

The first is “the level of generality” problem, a complication that often bedevils legal reasoning (see here, for example). No one is opposed to “fundamental human rights”, but what counts as a human right and how should such rights be defined? By way of example, do fundamental human rights include a right to housing, or a right to health care, or a right to a universal basic income? And if so, who will be required to pay for the provision of these rights, and how much income or what level of housing or health care must be provided to all?

The next problem, however, is even more fundamental (pun intended!). Even if we could agree on what rights counts as “fundamental human rights”, what happens when these rights come into conflict with each other. Consider, for example, the right to life and the right to liberty, two of the fundamental rights on Bingham’s laundry list of human rights. What happens when the right to liberty conflicts with the right to life? Doesn’t a woman’s right to choose an abortion violate the right to life of unborn children? Or vice versa, doesn’t an unborn child’s right to life interfere with abortion rights? Either way, which right should prevail?

But the biggest problem with Bingham’s analysis of human rights is that our erudite author makes no mention of the natural law tradition, which might be able to help us address the first two problems described above. For my part, instead of having to trudge through Bingham’s rather pedestrian survey of human rights, I would have preferred a survey of, say, the Hart-Fuller debate or an in-depth discussion of “The Grudge Informer Case” from post-WWII Germany (see, here, for example). Next time, I will assign my students the 1/2 hour video below instead of Bingham’s laundry list of human rights: