In keeping with my willy-nilly blog habits, I'm going to vent about something that has nothing to do with Fred Durst. Although you can definitely file this one under litigious.
Reading my property casebook (as I catch up from all my appellate brief/moot court insanity), I stumbled across the following footnote:
Far more opinions by Judge Posner have been selected by casebook editors for inclusion in their casebooks than those of any other judge. Why do you suppose this is so? See Mitu Gulati & Veronica Sanchez, Giants and Pygmies, 87 Iowa L. Rev. (forthcoming 2002) (suggesting reasons why even reputedly liberal academics choose the opinions of reputedly conservative judges like Judge Posner and his colleage on the Seventh Circuit, Judge Easterbrook, who came in second to Posner).
-Dukeminier & Krier, Property, 5th Ed. p. 550
Before I get to the reasons why I think casebook authors use Posner opinions more than others, I'd just like to let my three readers know exactly who
Judge Posner is. Some of you may have followed that link to find out who he is (I encourage it even just to see what he looks like), and others will simply read (or pretend to read) what I have to say.
Judge Posner is from University of Chicago Law School, where our dear friend
Justice Scaly also taught. Like Scaly, Posner is rather conservative. He's a very prominent proponent of the so-called "Law and Economics" perspective, which views the law as a means to decrease the costs associated with inefficient practices.
That, for most of you (two out of my three readers), will be terribly confusing. The bottom line there, is that Posner's bottom line is THE bottom line: money. Not people, money.
However, in my opinion, the one thing Judge Posner has over every other Judge who's opinions I've read is that
he writes really good opinions. They're eloquent, they're ordered, they're relatively clear, very well organized. Often you disagree with the result, but there's little room for arguing that the man is a brilliant writer.
That's the first reason, if you ask me, why you'll so often see his name in casebooks.
The second reason, of course, is that they're controversial. There's nothing like a detailed economic critique of a city ordinance that's been challenged on constitutional grounds to raise the eyebrow. The issue with his controversiality though, is that it's often very difficult to penetrate his argument in order to refute it. He's a lot like Kant in that respect. Maddeningly right in one way, and frighteningly wrong in another. But the fact that it's so maddening to the liberal (rights-based) side of things, and so defensible from the conservative (economic) side, really does encourage thought on the part of almost all of his readers.
In that respect, he's the perfect author of casebook opinions. The neocons love him because he's such a powerful voice, and the liberal law professors love to either toy with his arguments or look for chinks in his armor. And in the end, law students benefit from both sides.
Well, sorry for the boring trip into my brain, kids. While that certainly wasn't saucy, you probably all feel as though you've intruded just a little too much into my brain :).
But, to sum up, I think that (knock on wood) if one of the sitting justices were to no longer be in office (*cough* Rehnquist *cough*), Judge Posner would probably be the best replacement, in my opinion, that George W. could possibly nominate.
Also, to bring it back to me, I think that this law school thing has finally done something to me. I think I get what it is they're looking for from me. Who knows though. Only the finals can truly tell. Well, then there's the law review competition. Sigh. But other than that, everything really is coming up Milhouse.
