Overcoming Law

by Richard A. Posner

Book Overview

Legal theory must become more factual and empirical and less conceptual and polemical, Richard Posner argues in this wide-ranging new book. The topics covered include the structure and behavior of the legal profession; constitutional theory; gender, sex, and race theories; interdisciplinary approaches to law; the nature of legal reasoning; and legal pragmatism. Posner analyzes, in witty and passionate prose, schools of thought as different as social...

• Format: Paperback
• Language: English
• ISBN: 0674649265
• ISBN13: 9780674649262
• Release Date: October 1996
• Publisher: Harvard University Press
• Length: 608 Pages
• Weight: 1.95 lbs.
• Dimensions: 1.6" x 6.1" x 9.2"

Customer Reviews

Science, Economics and the Nature of Law

Richard Posner, a US Federal Court of Appeal judge and a senior lecturer of law in the University of Chicago is one of the most important Legal scholars living today. For me personally, reading his Sex and Reason was a transformative experience: it completely changed the way I looked at the Law. Perhaps the most curious thing I learned about Posner's outlook from reading `Overcoming Law' is that he isn't as swayed by his own ideas, maintaining a more careful and tentative approach. I'll return to that point shortly. `Overcoming Law' is a collection of essays, mostly already published book reviews, to which Posner added much new material and re wrote some of the old. The result is a tour de force of breathtaking intellectual scope and penetrating analysis. Posner ranges from offering an economic-psychological account of Judges to discussing homosexuality in ancient Athens; from a critique of modern constitutional theorists to discerning legal thought in E.M Forester's novel Howards End. Posner is a brilliant writer, managing to simplify complex issues and keeps his 597 page book a page turner. That is not to say that it's all easy; Posner's an intense and subtle thinker, and I for one need to reread some of the more theoretical chapters. Posner offers devastating critiques of intellectuals and thinkers left and right - but mainly left. Although Posner is invariably civil and respectful even to people he completely disagrees with, he seems occasionally biased to the Right. Compare his devastating analysis of Martha Minow's book about the disabled and the Law Making All the Difference: Inclusion, Exclusion, and American Law (chapter 12), with his discussion of Robert Bork's The TEMPTING OF AMERICA (chapter 9). Minow is making a good faith attempt to deal with difficult issues, although Posner is correct in noting that she's too Utopian; Bork's approach is, "militant[t] and dogmati[c]" (p. 241). Furthermore, because Bork's views are not really derived from Original Understanding, Bork is either self deluded or simply lying. And yet Posner compares Minow to a fruitcake who seeks refuge in an imaginary world of the Stone Ages. Bork on the other hand "should have been confirmed and would have been an outstanding Justice" (p. 230, n). (Full disclosure, I've read neither book). And yet, Posner is not really right wing, except economically. If he were to construct a "comprehensive theory of the rights that the constitution should be deemed to recognize" he tells us, he would "come out closer to [Liberal legal philosopher Ronald] Dworkin than many would expect" unless they are familiar with the full range of his writing (pp. 175-176). Posner is the true, 19th century liberal (and I mean this in the best sense of the word) - believing in a wide scope for personal freedom in the political, economic and social spheres. In my review of `Sex and Reason' I discussed how I thought economic analysis of the law can offer us an objective way o

Great essays. His other books are better.

Another reviewer noted that this is the best intro to Posner. It probably is. The essays here touch on legal reasoning, economics, philosophy of law, sexuality and many other topics, giving the reader a 'survey' view of Posner. Most books of essays, though, have a cohesiveness that I did not detect here, which is fine, so long as the intention is ONLY to get a sampling. I can not stress enough how phenomenal a writer Judge Posner is. The essays are both challenging and readable; contraversial yet objective. In one, Posner defends his book 'Sex and Reason' against radical feminism. In another he examines Richard Rorty and the impact that modern philosophy has on law. Perhaps the best essay is on pragmatic legal reasoning, entitled "What am I? A potted plant?'. Besides the lack of cohesion, the biggest reason for the subtracted star is that, while Posner discusses economics, legal method and gender issues, his full length books on the subjects are better. Respectively, they are "The Economics of Justice", "The Problems of Jurisprudence" and "Sex and Reason." For the student of any one of these areas, read those first, read this after. Everyone else, start here!

Readable, even if you do not agree with the Judge

Judge Posner is in the news these days because he has served as a mediator in the Microsoft trial. He is both a public intellectual and a judge, as well as one of the leading philosophers of the movement in legal theory called "Law and Economics."This is an admirable record, and one way the judge has built his reputation is by being a prolific and readable writer on law. Overcoming Law is one of the best summaries of his work because as a series of essays, the reader is at liberty to dip into the most interesting topics.Understanding law and economics is a prerequisite. This is Posner's (and Ronald Coase's) idea that descriptively, judges try to maximize social wealth by allocating to claimants the results that those claimants are most willing to pay for. Prescriptively, to Posner, this is a Good Thing.Solomon in the Bible acted in a Posnerian fashion because the "good" mother valued her child's life over her possession of the child whereas the bad mother valued her possession over the kid's life. Posner would not say that Solomon saw the abstract good and made a decision according to his conception of the abstract good (which Posner feels can be flawed.) Instead Posner would say that Solomon found a decision procedure which revealed the true values of the claimants.This makes sense. What makes less sense is that Posner turns Marx's theories on their head, and this is rather dizzying, since Marx turned Hegel on his head. In Posner's ideal world, any atomic business transaction reveals that actor A values product or service P more than B does if B transfers that product or service at price R.Better critics than I have pointed out that economic actors who are acting close to the bone, such that they must work or trade, or die, may not value their mininum wage more than the service they render. They may value the time highly but sacrifice it anyway as a precondition for their existence. As Kant would say, existence is not a predicate, but a precondition to having predicates. Translated to the economic sphere, existence is not a Yuppie luxury, like an SUV, nor is it a necessity like bread. It is a precondition for having either.Posner writes, I believe, from the standpoint of the lucky American who has never had to face extinction as a consequence of the economy and this gives his thought a certain lack of heart which is also a failure to think things through.This is most on display in Posner's essay "Hegel and Employment at Will." Here, Posner speaks directly to legal philosophers including Drucilla Cornell who have made a case, based on the thought of Hegel, for property rights to jobs. Posner's defense of employment at will (which was thought, as recently as 1980, to be an out of date theory) is based on nothing more than an empirical, and questionable, economic claim: that we enjoy higher economic growth in America as a consequence of employment at will.This is to be misled by the numbers, for m

Judge Posner at his best (or worst?)

One of the few works that lives up to expectations! Provides Judge Posner's wonderful insights into almost all subjects touching upon the law while avoiding the rambling style which marred his The Problems of Jurisprudence. Posner once again shows that he does not fear taking controversial positions or picking fights. One of the few books that delivers intellectual meat without losing a sense of humor. Accessible and frank style make it a joy to read. Highly recommended for anyone with even a passing interest in the law, the workings of the judicial system, philosophy, or economics