Posner’s Unjustified Attack on Scalia

I was saddened to read Judge Richard Posner’s vitriolic criticism of Antonin Scalia written in the New York Times with Eric Segall. Judge Posner’s scholarship was the most important contribution to law in the latter half of the 20th century. He reformed many areas of law through the application of economics and did so with clarity, wit, and panache. As Blackstone was the leading legal scholar of this time, so was Judge Posner during my first 25 years as a lawyer.

But being a scholar carries some obligations. And one of them in my view is the obligation of charity—to put the views you oppose in the best possible light before critiquing them. Or if that is not possible within the short space of an op-ed, at least not caricaturing them. I would think that also the obligation of one federal judge to another in the popular press.

And it is obvious from his vast body of work that Justice Scalia does not believe in deferring to the majority, when the Constitution actually prohibits what the majority wants to do. He emphatically does not, as the Judge Posner and Professor Segall claim, embrace “the model of the British Constitution” where the legislature once was the final word.

Justice Scalia rigorously enforces the First and Second Amendments in the Constitution and many other provisions as well, including many that defend the rights of unpopular minorities, like those accused of crimes, because they are in the Constitution. 

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Remembering Henry Manne

For conservatives this has been a sad time. First, Walter Berns and Harry Jaffa, two giants of the movement passed away on January 10. Famous antagonists, who agreed on so much in practice and so little on policy, their deaths on the same day brought to mind the deaths of Adams and Jefferson on July 4, 1826. That much-remarked coincidence reminded me of the passing of Luther Martin on July 10, 1826. Who, I wondered would be next, and would it be a notorious tippler? Henry Manne was a golfer, not a tippler. Unlike Martin, however, he deserves to be remembered…

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Posner’s Tyranny of Expertise

Richard A. Posner has been called his generation’s “Tenth Justice,” a judge like Learned Hand or Henry Friendly whose prolific intellect and erudite jurisprudence rank him in quality and influence among members of the Supreme Court despite never having sat alongside them.[1] Readers of Posner’s new book, Reflections on Judging, may both concur in his ranking as tenth and be grateful that he stayed that way.

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Friday Roundup: December 14th

Don't miss Brian Tamanaha's visit to Liberty Law Talk to talk about Failing Law Schools. At EconLib's vast treasure trove: Israel Kirzner on "The Philosophical and Ethical Implications of Austrian Economics." Reconsidering Hobbes' revolution. "Debt and the Constitution" John Steele Gordon at The American: One of the president’s demands for avoiding the fiscal cliff is that Congress give him the power to raise the debt ceiling, subject only to a two-thirds vote in each house to override him.While it is hard to imagine Congress willingly surrendering so basic a power to the executive branch, I wonder under what authority it could do so.…

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On Being Divided by a Common Language: The Semantics of Scapegoating

If a person is told by another, who stands in some kind of authority over them, that they ‘needn’t be doing’ something they are doing, is the person who receives this information to interpret it as an instruction to cease what they are being informed they needn’t be doing?

On the American side of the Pond, it would seem, the statement is to be interpreted so; on the British side, apparently not.

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