prior probability

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

In a previous post, I described Richard Posner as “one of the greatest legal theorists and thinkers in history, on a par with such historical figures as the great dissenter Oliver Wendell Holmes, the natural law scholar St Thomas Aquinas, and the classical Roman law jurist Gaius“. Really? How did I come to that conclusion? In this post (and the next one), I will describe my “first contact” with Judge Posner, the moment when I first began to realize that Posner was not just a leading legal light, but a once-in-a-generation original thinker.

My first exposure to Judge Posner occurred in law school. But I have to tell you up front, my professors at Yale did not think very highly of the great Richard Posner. In fact, it would be no exaggeration to say that they totally disdained Posner and everything he stood for, which back in those days (the early 1990s) meant the economic analysis of legal rules or “law & economics” for short. Whether it was out of pure professional jealousy (my professors were by-and-large the same age as Posner) or outright envy (their accomplishments paled in comparison to Posner’s) or just plain spite, these Yale law professors would mention Judge Posner or cite one of his judicial opinions for the sole purpose of criticizing the man and his ideas, to offer an example of what not to think or write.

Alas, this dismissive and sneering attitude toward Judge Posner at first rubbed off on me. As a result, I did not begin to take Posner seriously until after I became a law professor in 1998, when I joined the faculty of the Pontifical Catholic University of Puerto Rico. At first, though, I have to confess that I actually refused to read anything by Richard Posner. As a recent graduate of the Yale Law School and full-time faculty member of a faith-based law school, I already “knew” that Posner’s works were stale and simple-minded. Why? Because the economic analysis of legal rules — especially the version of law & economics most closely tied to Posner, the version called the “Chicago school” — was too conservative, unoriginal, and morally suspect.

Given these negative priors, several more years would pass by before I actually started studying some of Judge Posner’s many multifaceted works on my own initiative, and when I finally did — in December of 2000 — my intellectual life would never be the same again. So, what was my first Posnerian foray, the piece of Posner’s writing that had such a momentous effect on me? As it happens, it was a book, and it had nothing to do with economics. I will identify Posner’s book and explain its effect on me in my next post in this series.

Note: Thus far, I have reviewed the first three chapters of Tom Bingham’s classic Rule of Law. (See here, here, and here.) Today, I will review Chapter 4.

Judge Bingham draws a key distinction between “judgment” and “discretion” in Chapter 4 of his book. In brief, for Bingham, the rule of law requires that “questions of legal right and liability should [he really means must] … be resolved by application of the law [i.e. “judgment”] and not the exercise of discretion.” But does this string of words/rule of thumb make any sense in the real world? As it happens, there is a big problem with Bingham’s formulation: the problem of hard cases, a problem made famous in scholarly circles by the late Ronald Dworkin. (See here, for example.)

To the point, the problem with Bingham’s purported distinction between “judgment” and “discretion” is that the exercise of discretion is unavoidable whenever we are dealing with hard cases. Moreover, every case that makes it to the Supreme Court is a hard case. Why? Because, by definition, there are plausible and good-faith arguments on both sides of the legal issue in question. (Otherwise, the case wouldn’t have gone up to the Supreme Court in the first place!) So, what is a “hard case”? Simply put, a hard case is a legal controversy in which a question of law or question of fact is open to multiple — and competing — interpretations.

Is a fish, for example, a “tangible object” under the Sarbanes-Oxley Act? That was the novel legal question posed in the case of Yates v. United States. Do murdering heirs forfeit their inheritance rights? That was the question in Riggs v. Palmer. What about a simple municipal ordinance that prohibits “motor vehicles” in city parks? Does the term “motor vehicle” apply to drones or other unmanned aerial vehicles (UAVs)? That is a variation of a famous hypothetical posed by the legal philosopher H.L.A. Hart, a simple hypothetical from the 1950s that continues to generate tons of scholarly literature to this day. (See here, here, and here, for example.) I could go on and on: the only limit to finding hard cases is one’s imagination!

Is there any way of shutting the lid to this legal Pandora’s box. One possible solution is the doctrine of stare decisis, i.e. binding precedent. Alas, this celebrated common law rule doesn’t always solve the problem of hard cases. Instead, it poses a new problem: the problem of argument by analogy. Simply put, for stare decisis to work, we must agree when two different cases are sufficiently alike so as to merit the same outcome. The problem, however, as every first-year law student learns during the first week of law school, is that there are no universally-accepted rules for deciding when two cases are sufficiently similar. Argument by analogy is often a judgment call!

I am taking a break from my break from blogging (sorry!) to report that the new edition of my undergraduate textbook Business Law and Strategy, which I co-wrote with my esteemed business law colleagues Sean Melvin and David Orozco, was just published by McGraw Hill. Among other things, our textbook introduces students to a wide variety of strategic concepts and explains their relation to law, such as asymmetric information, commitment devices, and the hold-out problem, just to name a few.

I will resume blogging in the next day or two. In the meantime, below are a few more pictures of our new puppy Nugget:

Following up on this prompt from Sheree via Bee H. (see here), I am posting two songs “specific to me and my beloved” (Sydjia, my wife of 10+ years now) from 2010, the year we started dating. The first one is the musical composition “Hand covers bruise”, the haunting theme music for the award-winning film The Social Network, which we saw on our first date.

The second one is below the fold:

That is the question posed in this recent essay/intellectual biography “The Mystery of Richard Posner” by one Corbin K. Barthold, a lawyer in San Francisco. (FYI: Here is a shorter version of Barthold’s essay. Hat tip: The Amazing Tyler Cowen.) For my part, it suffices to say that I reject Barthold’s wishy-washy conclusion that Judge Posner’s legacy is a “mixed” one. During his six-decade career (alas, he is now retired), Judge Posner (pictured below circa 1981, his first year on the bench) wrote 40 books on a wide range of subjects, including aging, justice, and the legal regulation of sex; hundreds of highly-regarded and path-breaking scholarly articles; and (in his role as a judge) over 3000 judicial opinions. But Posner was not only the most prolific–and the most cited–legal scholar and judge of all time; he is also, simply put, one of the greatest legal theorists and thinkers in history, on a par with such historical figures as the great dissenter Oliver Wendell Holmes, the natural law scholar St Thomas Aquinas, and the classical Roman law jurist Gaius. I will make further reflections about Richard Posner’s enormous legacy in a series of future posts in the days ahead.

Last week, the Amazing Tyler Cowen linked to this blog post (twice!) calling for more “dynamism and progress in the Caribbean” (see screenshot below). While I agree with these goals (who can be against “dynamism” and “progress”?), the Humean skeptic in me questions whether another think tank or research institute would actually accomplish anything and, if so, whether it would do more harm than good.

Following up on this fun prompt via my fellow co-blogger Sheree (hat tip: Bee H.), I am posting this classic from my young adult years, when I was still a student at the Yale Law School. During those years, I could not go to a party, pub, or club without hearing this catchy song!

Chapter 3 of Tom Bingham’s book Rule of Law not only surveys the main sources of law in Britain–statutes and legislation, judge-made law and cases (the common law), as well as European and international law–it also identifies an enormous anomaly in the concept of rule of law. The problem, which is both a theoretical and practical one, is this: how can there be “rule of law”–as opposed to what I like to call the “rule of politics”, i.e. rule by the arbitrary whims of men–if we don’t even know how many laws there are in the first place?

At a minimum, as Judge Bingham himself notes, the law must be “accessible”, “intelligible”, and “clear”. In plain English, people and firms must know what the rules of the game are before they play the game, or in Bingham’s own words: “the rule of law requires that the [rules] laid down should be clear.” But, in reality, there are so many cases, laws, and regulations “on the books” that it is impossible, even for a trained lawyer, to know what the law really is. (This problem is especially acute in the United States, where legal experts don’t even know how many federal crimes there are! See image below or here, for example.) In fact, the problem is even worse than that. Even if we could use some method of “machine learning” or artificial intelligence to identify all the State, federal, and international laws that make up the U.S. legal environment, we would soon discover that many of these rules are either incomplete or vague or, worse yet, in contradiction with each other.

Is this a soluble problem, or is the concept of rule of law an incoherent one? For his part, in Chapter 4 of his book, Bingham will attempt to draw a distinction between narrow or confined “judgment” (in which courts apply the law in a consistent and fair manner) and unbridled, broad “discretion” (in which courts act like power-hungry political bodies). I will proceed to Chapter 4 next week. In the meantime, Happy Groundhog Day!

Last night, during another bout of insomnia, I opened YouTube and poked around that glorious site. At one point, YouTube’s secret algorithms enticed me with this one-hour lecture by Professor Josiah Thompson, a first-generation JFK assassination researcher whose 1967 book Six Seconds in Dallas is considered a classic. Professor Thompson’s excellent lecture, which took place on November 18, 2022 at the Sixth Floor Museum in Dallas, sheds new light on the assassination of JFK and is meticulously researched, but when I first clicked on the link to his lecture, I got this ominous warning:

Question: I know YouTube allows users to “flag” content that they find offensive, but why can’t I, in turn, “flag” obnoxious censorship warnings like these?