[Marxism] Eric Posner and his leftist allies justify kangaroo courts

michael perelman michael at ecst.csuchico.edu
Wed Nov 2 18:56:01 MST 2005

Here is a brief note about Richard Posner from my new ms. _Fouling the 
Nest: _
_How Right‑Wing Extremism and Business Incompetence Destroy American 

Judge Richard A. Posner has little use for words like fairness and 
justice. "Terms which have no content," he calls them. What America's 
lawyers and judges need, he says, is a healthy dose of free‑market 
thinking. From the bench of the U.S. Court of Appeals for the Seventh 
Circuit here, Judge Posner applies a standard of economic efficiency in 
cases where many others fail to see markets at play. He calibrates 
social costs and benefits on questions of religious expression and 
privacy. [Barrett 1986]

Not everybody is enamored with Posner's work, despite his prolific 
output and its wide‑ranging scope. According to one skeptic's evaluation:

Posner's arguments are composed of speculative and implausible 
assumptions, overbroad generalizations, and superficial descriptions of 
and quotations from cases that misstate or ignore facts, language, 
rationales, and holdings that are inconsistent with his argument. None 
of the cases discussed by Posner support his thesis. Instead, the 
reasoning and results in these cases employ varying standards of care, 
depending on the rights and relationships among the parties, that are 
inconsistent with the aggregate‑risk‑utility test but consistent with 
the principles of justice. [Wright 2003]

Despite any lingering questions about the quality of his work, Posner 
certainly knows how to capture attention. In his most famous proposal, 
he advocated the purchase and sale of babies:

[The baby] shortage appears to be an artifact of government regulation, 
in particular the uniform state policy forbidding the sale of babies. 
That there are many people who are capable of bearing children but who 
do not want to raise them, and many other people who cannot produce 
their own children but want to raise children in their homes, suggests 
the possibility of a thriving market in babies, especially since the 
costs of production by the natural parents are typically much lower than 
the value that many childless people attach to the possession of 
children. There is, in fact, a black market in babies, with prices as 
high as $25,000 reported recently, but its necessarily clandestine mode 
of operation imposes heavy information costs on the market participants, 
as well as significant expected punishment costs on the middlemen 
(typically lawyers and obstetricians). The result is higher prices and 
smaller quantities sold than would be likely in a legal market. [Posner 
1977, p. 113]

Major corporations are less interested in baby markets than avoiding 
expensive judgments. The attraction of the law and economics movement 
lies more in its insistence that all regulations should be narrowly 
decided on questions of economic costs and benefits.

Corporations consistently overestimate the costs of regulations, while 
the benefits defy measurement. One critical study summed up this 
approach to regulation: "Cancer deaths avoided, wilderness and whales 
saved, illnesses and anxieties prevented ‑‑ all these and many other 
benefits must be reduced to dollar values to ensure that we are spending 
just enough on them, but not too much" (Ackerman and Heinzerling 2004, 
p. 2004).

More often than not much of the data upon which such decisions rest will 
come from the corporations themselves. Conservative activist 
organizations have been very successful in using their influence to get 
government agencies and the courts to minimize the value of regulatory 
benefits while exaggerating the costs.


Michael Perelman
Economics Department
California State University
michael at ecst.csuchico.edu
Chico, CA 95929
fax 530-898-5901

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