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Friday, June 27, 2014


From Posner's recent long and fascinating interview:

"I've changed my views a lot over the years. I'm much less reactionary than I used to be. I was opposed to homosexual marriage in my book Sex and Reason, published in 1992, which was still the dark ages regarding public opinion of homosexuality. Public opinion changed radically in the years since. My views have changed about a lot of things. I've become much more concerned with long prison sentences; softer on drugs; more concerned with consumer protection, the environment and economic inequality; less trustful of purely economic analysis—the last partly because of the crash of 2008 and the ensuing economic downturn. That shook some of my faith in economic analysis. And developments in psychology have required qualification of the "rational choice" model of economic behavior. So my views have changed a lot. You don't want a judge who takes a position and feels committed to it because he thinks it's terrible to change one's mind."


I remember Posner's Holmes' lectures at HLS a bazillion years ago, when he suggested that it's not likely that philosophers will be able to change the moral positions of many people who read their work. I'm wondering if in light of the identified changes above, he would change his mind about *that* and attribute any of the changes to having been persuaded by normative legal/political theory--maybe having Martha Nussbaum as his friend and colleague has had some effect too. Anyway, it's an interesting array of things to have changed one's mind about, and I guess the fact that Posner changes his mind publicly is a reason I quite like him. One of my intellectual heroes, Jeffrie Murphy, made a noble career out of changing his mind, seemingly every six months, about matters of punishment theory.  Posner's public volte-face (or other admissions) strikes me as the self-laceration we academics should all be willing to inflict when the situation warrants. 

P.S. In related Posner-watching, I couldn't help but notice his reaction in Slate to Orin and by extension to Riley v. California, which amounts basically to: "Pfft. What's the BFD? I wrote that opinion two years ago."

Update: I just came across this sharp response to the Posner piece in Slate by Will Baude. 

Posted by Administrators on June 27, 2014 at 12:46 PM in Culture | Permalink


I wonder if Posner has even an iota of self-awareness and realizes how odious that comment is. There's not a shred of apology or reflection or self-growth there. What is that supposed to be? I was a bigoted sonofabitch because, hey, it was 1992? So he just goes with the social opinion de jour and finds some free-market equation to justify it?

Posted by: Hadar Aviram | Jun 30, 2014 12:24:30 PM

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

One theory is that "unreasonable" would be usually be determined in civil damage suits (often at the sufferance of the unknown of a jury) while warrants would in effect provide presumptive immunity.

Posted by: Joe | Jun 29, 2014 11:20:30 AM

(I mean, I guess you can originally think of it as a federalism provision, warrant requirements apply to the Feds because the states aren't about to exempt them from trespass law. But then incorporation really badly breaks it...)

Posted by: Paul Gowder | Jun 29, 2014 10:09:00 AM

Well, except "unreasonable" modifies "searches and seizures" not "laws." So that doesn't forbid the state from turning all that warrant stuff into a nullity and reducing the 4th amendment to "no unreasonable searches." (Which then makes one wonder why the framers bothered to write all that stuff about warrants in the first place.)

Posted by: Paul Gowder | Jun 29, 2014 10:04:46 AM

Hi Paul,

There are a lot of missing steps between the textualist view of the warrant clause and the idea that states could circumvent the 4th Amendment at will.

For starters, though, the reasonableness clause would still apply, even if the warrant clause weren't relevant to the situation. A state law that allowed cops to do anything they wanted to anybody's property probably wouldn't be reasonable.

Posted by: Will Baude | Jun 29, 2014 1:06:48 AM

The recusal thing is laughable. He wouldn't recuse, and the court wouldn't say he has to.

Posted by: Anon | Jun 28, 2014 8:54:14 PM

Over at Concurring Opinions, the Slate piece is cited to wonder if someone might have a good claim to a recusal motion given Posner's comments as to "nuts" among anti-choice protestors. I'd add that he is not much softer on the dissent in the invocation ruling, tossing in a gratuitous "you know witches" reference to Wiccans.

Posted by: Joe | Jun 28, 2014 1:45:27 PM

uh, crim people, that is. Thanks autocorrect.

Posted by: Paul Gowder | Jun 28, 2014 11:02:54 AM

Dan, speaking of the slate piece, do actual crime people really believe that the warrant requirement was originally not an actual limitation on searches but just a way to get around common-law trespass charges for the cops? (Will Baude in a recent volokh post also seems to think Posner is more-or-less right. I'd link that, but it seems like the prawfs commenting interface no longer allows hyperlinks)

The problem with this view seems obvious to me: it can't possibly be consistent with incorporation. After incorporation, if Posner's view of what the warrant requirement meant were true, the states could just statutorily amend common-law trespass to exempt cops, and thereby abolish all constraints on police searches. Which can't be right, at least not without assuming a bunch of other highly controversial (to say the least) restrictions on the state legislative power to amend the common law/property rights.

Posted by: Paul Gowder | Jun 28, 2014 11:01:50 AM

Unless he has come to these new beliefs about moral philosophy extremely recently (after his latest book about judging), I tend not to think his views are different on that front. Note that he mentions psychology, not moral philosophy. Kevin Walsh and I go into some of his views on these issues in this paper: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2399487

Posted by: Marc DeGirolami | Jun 27, 2014 2:14:57 PM

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