Richard Posner, one of the most important judges of the past fifty years – perhaps even more important than some of those who have sat on the Supreme Court of the United States – has suddenly declared that he is retiring. For better or for worse, Posner’s influence has been felt far and wide.
Judge Richard Posner started out as a clerk for Justice William Brennan of the Supreme Court before becoming an attorney at the Federal Trade Commission (FTC) back in 1964, and then a law professor in 1968. He was nominated by then-President Ronald Reagan to a seat on the federal appellate court out in Chicago, the Seventh Circuit Court of Appeals, serving there from 1981 until announcing his retirement on September 2, 2017, effective the very next day.
As a judge and as a law professor – he continued to teach at the University of Chicago while being a judge – Judge Posner became famous as the pioneer of the law and economics movement, which aimed to resolve court cases based on economic principles, particularly on the efficient allocation of resources. This had more of an impact in civil cases than criminal ones and created a host of strange outcomes that almost always favored business interests at the expense of the little guy.
Posner’s viewpoints on criminal law were mixed: While he had what could only be called “bogus” ideas on law enforcement and civil rights, he also thought that people who’d been convicted of a crime were treated too harshly, and that law enforcement was too concerned with prosecuting drug crimes.
Perhaps the most staggering of Posner’s viewpoints was that privacy shouldn’t be treated as important, at all, because the only people who wanted it were the people who used it to commit crimes or hide bad conduct. In the wake of Edward Snowden’s revelation that the National Security Administration (NSA) was wiretapping millions of phones in the U.S., Posner even voiced concern that smartphone software was being made to prevent the government from snooping: “If the NSA wants to vacuum all the trillions of bits of information that are crawling through the electronic worldwide networks, I think that’s fine,” he said.
Posner’s pandering to law enforcement spilled over into his view on recording police officers. In a case that dealt with whether Illinois’ Eavesdropping Act would let law enforcement arrest and prosecute people for videotaping officers in public, Posner ruled for the police on the basis that, in theory, videotaping officers might somehow impair their ability to function.
However, Posner’s economic approach to the law also led to him thinking that drug laws should be abandoned because they infringe on people’s freedoms without much of a benefit to society.
Even though Posner ruled from a bench in Chicago, the impact of his rulings have been felt throughout the U.S., including in Maine, in large part because his ideas challenged not what judges should rule, but how. The result was a mixed bag in criminal law.
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