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Thursday, October 06, 2005

My mother the communist

You may have seen the announcement earlier and elsewhere, but Geof Stone and the Pos are going at it in this week's Debate Club, over at Legal Affairs.  The ostensible topic of debate is the Patriot Act and it's relative vices and virtues.  But it's really about the larger topic of balancing civil liberties against security threats in our unsettled age of looming fear and terror. 

Here's one tasty exchange. Posner notes that his position of "more security, less liberty" should be taken in good faith because he knows the costs of civil liberties abuses.  He writes:

I believe I have a closer personal acquaintance with civil-liberties abuses than you. My mother was forced out of her job as a public school teacher, and later hauled before the House Un-American Activities Committee, because of her communist sympathies. I consider her political views to have been idiotic, but I am quite sure that she was completely harmless.

Stone opens his response today with this retort:

I love that you've shared your upbringing, Dick. Of course, from our many dinners with Charlene and Nancy, I've known for years that you were a "Red diaper baby," but I'm sure this will fascinate many of our readers, who will now drag out their dog-eared copies of Freud to read up on the "reverse Oedipal complex." And, of course, you've inadvertently affirmed my insistence on the relevance of history! Let's see, how does it go: A liberal is a conservative who's been mugged; a conservative is a liberal who's been arrested; and an advocate of law-and-economics is a Red diaper baby whose mother's been hauled before HUAC.

Argh, I feel so predictable--I was fascinated by the fact of a red-diaper Posner, but alas, I'll spare all the Freud.  In any event, the exchange is very pointed and informative, especially for non-specialists interested in this important topic. (Hat tip: the pr people at Legal Affairs who tell me about these debates!)

Posted by Dan Markel on October 6, 2005 at 10:12 AM in Blogging | Permalink

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» Son of Communist from The Moderate Voice
Interesting debate going on between Chicago Law Professor Geof Stone and 7th Circuit Judge and Law & Economics Guru Richard Posner regarding the USA PATRIOT Act. It's chock fu... [Read More]

Tracked on Oct 6, 2005 12:31:47 PM

» Sunstein on 5-4, and Posner's Mother from The University of Chicago Law School Faculty Blog
In the New York Times today, Cass Sunstein writes about 5-to-4 decisions from the Supreme Court, arguing that such splits will persist even if the political composition of the Court shifts after President Bush's two appointments. Over at PrawfsBlawg, E... [Read More]

Tracked on Oct 8, 2005 9:27:17 AM

» Sunstein on 5-4, and Posner's Mother from The University of Chicago Law School Faculty Blog
In the New York Times today, Cass Sunstein writes about 5-to-4 decisions from the Supreme Court, arguing that such splits will persist even if the political composition of the Court shifts after President Bush's two appointments. Over at PrawfsBlawg, E... [Read More]

Tracked on Dec 31, 2007 10:34:47 AM

Comments

Why does it not surprise me that Posner supports the Patriot Act? This is utterly true to form for the man. Consider:

1. "Pragmatism." Content free legal theory!

2. Even Easterbook recognizes that Posner's opinions just ignore the law. He sez: "Judge Posner is the federal judiciary's pragmatist-in-chief (see, in addition to his judicial writings, Richard A. Posner, Law, Pragmatism, and Democracy (2003)), while I think that judges should be concerned less about wise policy and more about sources of authority for life-tenured officials to make decisions."

3. This opinion. (Via Mike.)

4. This opinion (Again via Mike.)

5. "Economic" Analysis of Wars of Aggression

6. The fantasy that the bankruptcy act will reduce interest rates (for my commentary, see the comments to Posner's post or here)

That's just a quick skim through the recent blogged horrors. I'm not even going to go into the articles, or more of the 7th circuit opinions...

Posted by: Paul Gowder | Oct 6, 2005 11:07:08 AM

In fact, Posner condemns himself out of his own mouth in this legal affairs debate. Consider the almost divine idiocy of the following:

So I think we need something like section 215—something more like it than you allow. I do not think the price in liberty would be high. Most records custodians will voluntarily hand over nonprivileged records to the government when told the government thinks that the records may contain information bearing on protection of the national security. Those custodians who refuse to disclose the records may by refusing create enough suspicion to enable the government to obtain a subpoena even under your narrower version of the section!

What?! Does Posner not understand that he's just proposed a legal rule which would mean that the government gets to search anything any time it pleases? Refusing a search gives rise to enough suspicion to justify a search? I'm sure that the national archives in the Bush Administration would be happy to take a pair of scissors, chop the 4th amendment out of the constitution, and mail it to Posner so that he can personally set it on fire in the middle of an en banc 7th circuit...

Posted by: Paul Gowder | Oct 6, 2005 11:10:14 AM

Oh, lets not forget this opinion (also via Mike), where Posner basically openly defies the Supreme Court.

Posted by: Paul Gowder | Oct 6, 2005 12:30:11 PM

When reading a Posner opinion, I would often say, "Man, this guy is being really sneaky." Or, "If I didn't really know this area of the law, he'd pull this over on me." As it turns out, I'm not paranoid. Posner really was trying to trick me. This New Yorker profile (via A3G) is the best article I've read all year. Here are a couple of gems:

He reasons from conclusion to premises.
"In hearing a case, he doesn't first inquire into the constricting dictates of precedent; instead, he comes up with what strikes him as a sensible solution, then looks to see whether precedent excludes it.

Rhetoric is more important than logic.
"Critics find Posner exasperating, because often he simply doesn't take the trouble to answer their careful refutations. It is not that he is incapable of doing so - it is, rather, that he is more attracted to rhetoric than to proof; and believes it is more powerful. He is not, in the end, very interested in the sort of prudent rigor that produces watertight logic."

Re: Bush v. Gore (You guys weren't sneaky enough!).
"It was the pragmatically correct verdict because it averted the danger of a political crisis, but the judges were at fault for failing to cloak their obviously pragmatic decree in convincing legal jargon."

There's also a nice discussion of his communist mother.

Posted by: Mike | Oct 6, 2005 1:29:53 PM

We don't even need to go as far as Freud here to explain Posner- according to an old Lingua Franca profile his parents had known the Rosenbergs befor they were executed and afterwards took some of little Dickies toys away to give to the Rosenberg kids. It's all been down hill from there.

Posted by: matt | Oct 6, 2005 3:36:58 PM

What's up with this site allowing so much irrelevant Posner-bashing? My comments got deleted very quickly when I briefly mentioned the (more relevant) fact that Brian Leiter didn't like to have his own words quoted back to him.

Anyway, the Posner-Stone debate is very interesting. It is ostensibly about the Patriot Act, right? The only actual provision of the Patriot Act that Stone ever even mentions is section 215. Posner has pointed that out twice, even asking Stone to list anything else that irks him. Stone's response was so irrelevant that Posner responded with this dry wit:

You close with a number of complaints about recent restrictions on civil liberties—this in response to my comment that you seemed concerned with only one section of the PATRIOT Act. I don't think any of your complaints are actually about provisions found in the act, but that is a detail.

A detail indeed. Is it too much to expect that two law professors who sign up to debate the "Patriot Act" might actually have something to say about that Act, as opposed to everything else that they have been thinking about?

Posted by: Niels Jackson | Oct 6, 2005 5:45:10 PM

I hope it's clear that my comment was a joke and not bashing. I think there is a lot to not like about Posner, both in his politics and jurisprudence, but though that's (I think) a true story I meant it in fun. I guess it's just as relevent as his use of the general story, though.

Posted by: Matt | Oct 6, 2005 8:15:34 PM

Niels: irrelevant to what?

And why should the patriot act be separated from the whole package of "anti-terror" police state behaviors that this administration has been indulging in? Isn't that stuff relevant to the question of whether the administration should be trusted with the power to sneak-and-peek this, and roving-wiretap that, and grab library records, and all the rest? Isn't it rational to say that we don't trust an administration (or a series of administrations, perhaps) doing things like systematically lying to the fisa court, tortuting people, appointing cronies, disappearing citizens and immigrants, and otherwise peeing on the constitution with the kind of expanded powers and reduced constraints that comes with the patriot act?

Posted by: Paul Gowder | Oct 6, 2005 10:45:36 PM

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