Tag Archives | Richard Posner

Posner on Lochner (UPDATED: Posner versus Posner?)

While I greatly admire Judge Richard Posner’s amazing corpus of work, I’ve noticed in recent pieces that he has a tendency to state propositions as indisputable, absolute truths when they are at least disputable, and sometimes flat wrong. Here is an example.

Posner writes in the California Law Review:

The majority opinion in Lochner is easily forgettable yet well worth rereading in this connection. I quote a typical paragraph:

It is manifest to us that the limitation of the hours of labor as provided for in this section of the statute under which the indictment was found, and the plaintiff in error convicted, has no such direct relation to and no such substantial effect upon the health of the employé, as to justify us in regarding the section as really a health law. It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employé (all being men, sui juris), in a private business, not dangerous in any degree to morals or in any real and substantial degree, to the health of the employés. Under such circumstances the freedom of master and employé to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution.

This is naked policy analysis; nothing in the Constitution, or in precedents that commanded respect, suggests that states can’t be allowed to place a ceiling on hours worked unless justified by a concern with workers’ health. The opinion, which I am tempted to quote in full, is so shallow that Holmes’s one-page dissent says everything that needs to be said to unmask any pretense that the majority was engaged in something that might be called legal analysis.[End

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Posner on Financial Industry Deregulation, Greve on Posner


“I was an advocate of the deregulation movement and I made — along with a lot of other smart people — a fundamental mistake, which is that deregulation works fine in industries which do not pervade the economy,” he said in the appearance on Spitzer’s viewpoint.” “The financial industry undergirded the entire economy and if it is made riskier by deregulation and collapses in widespread bankruptcies as what happened in 2008, the entire economy freezes because it runs on credit.”

Michael Greve [my GMU colleague]:

The mea culpa—hedged with a supercilious “I may have started it but conservatism got out of hand” aside—fails to satisfy minimum standards of intellectual coherence and empirical evidence.

The suggestion that the markets that produced the 2008 financial crisis were “free”—in the sense of unregulated—is charitably described as contrary to fact. The money that juiced the markets wasn’t supplied by some reckless profiteer; it was supplied by the Fed. The GSE’s that by everyone’s admission contributed (and on many accounts caused) the disaster operated (and are still operating) with government guarantees.

Similarly, but more broadly: the financial system operated and continues to operate against the rule that depositors—unlike shareholders, bondholders, vendors, employees, or anybody else—will in the event of failure get 100 cents on the dollar. That arrangement encourages banks to play with somebody else’s money. It is not a “free market” rule. It is a law and a regulation, and the source of a convoluted system that desperately tries to cope with the risks of its own creation by piling layer upon regulatory layer.

It’s true that if you “deregulate” one piece of a market that’s already shot through with government regulation, subsidies, guarantees, and warped incentives, you can increase risk further and get very bad results. Maybe that’s what happen in the

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Goofiness is in the Eye of the Beholder

Tom Smith: “I cannot resist observing that Posner’s lament that conservatives have gone all goofy comes from the guy who proposed setting up a free market in babies. My point is not so much that a free market in babies would be a bad idea, though I do think it would present many practical and some moral difficulties. Rather it is that often goofiness is in the eye of the beholder.”

I find Posner’s claim that he’s “become less conservative since the Republican Party started becoming goofy” strange, for two reasons. First, he claims to still admire Ronald Reagan and Milton Friedman. What policies is the modern conservative movement, or the modern Republican Party, pursuing that Reagan wouldn’t endorse? None that I can think of, except perhaps a tougher line on immigration. And the four GOP presidential nominees since Reagan have all been substantially less conservative than he was, suggesting that if Posner doesn’t like the modern GOP, he should become more conservative. And what economic policies is the GOP endorsing that would offend Milton Friedman for being too conservative? Friedman would surely think that Paul Ryan’s budget plan doesn’t go nearly far enough in cutting federal spending.

The second oddity is that the purported goofiness of the modern GOP, if it is such, would have any effect on his own ideas. I’ve certainly found occasion to be embarrassed to call myself a libertarian because of the antics of other libertarians, but my own substantive views never changed because of that, and I don’t see why they would.

What Posner almost seems to be saying is that he finds the GOP to be goofy, and if he is identified in the public mind as a conservative, some of that goofiness will be attributed to him, and affect his own [...]

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