The Views of Judge Richard Posner

Paper Summary:

This paper discusses that legal theorist, Judge Richard Posner, judge of the United States Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School, has had a profound impact on scholarly discussions about economics as it relates to the practice of law and about court decisions with reference to law. The author points out that Posner equates morality with efficiency and pragmatically states that moral principals "serve in general to promote efficiency." The author explains that Posner's propensity for drama raises eyebrows and raises voices and issues to challenge his meanings. The author reviews anti-Posner articles by Deborah Jones Merritt, Gertrude Himmelfarb and Jed Rubenfeld.

From the Paper:

"An act of altruism is generally thought of as a charitable, gracious, unselfish act, from one person towards or for another. But, in the Posner law and morality world, altruism is still altruism, and yet it is more than that: it is another subject for efficiency. Say a "Good Samaritan" (altruist) rescues a person, and that Good Samaritan gets injured in the process of saving the first person, who is in dire need. The Good Samaritan receives a promise from the rescued person that he, the Good Samaritan, will be justly compensated for those injuries, but the rescued person goes back on his promise. The morality here conflicts with the law, according to Posner. "Because it is unusual for people to give something without asking anything in return?", it would be hard, in court, to produce evidence that a promise was indeed made by the rescued party to the altruistic party. And that legal fact in itself presents a morality conundrum to the thinking, rational person: Why try to help someone you don't know out of sheer altruism, if you might end up harming yourself and not even receiving medical care for the injuries you sustained? This is another example of the problems that are raised when law and morality come into conflict."

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