Judge Richard Posner, Reagan Appointee Who Brought Economics Into the Courtroom, Dies at 87

Richard A. Posner, the federal appeals judge and University of Chicago scholar who taught a generation of lawyers to ask what a legal rule actually costs, has died at 87, The Washington Post and The New York Times reported Wednesday. The reports we reviewed did not give a cause of death.

Posner served nearly 36 years on the U.S. Court of Appeals for the 7th Circuit in Chicago, and many ranked him second in influence only to the justices of the Supreme Court, the Post reported. The Times called him the most-cited legal scholar of the second half of the 20th century.

Born in New York City in 1939, Posner graduated from Yale and from Harvard Law School, according to the Federal Judicial Center's biography. He clerked for Justice William J. Brennan Jr. and worked in the solicitor general's office before turning to teaching, first at Stanford and then at the University of Chicago Law School, which he joined in 1969.

President Ronald Reagan nominated him to the 7th Circuit in 1981, and the Senate confirmed him that November. He served as the court's chief judge from 1993 to 2000 and retired from the bench in 2017.

Posner was a founder of the law and economics movement, which applies the tools of economics to legal questions, wrote Ilya Somin, a law professor writing at Reason's Volokh Conspiracy. His textbook, Economic Analysis of Law, first appeared in 1972 and has gone through numerous editions. The approach changed how American courts think about antitrust, contracts, accidents and regulation, pushing judges to weigh real-world incentives and costs rather than slogans.

He was also astonishingly productive. Somin noted that Posner wrote nearly all of his own judicial opinions, rarely relying on law clerks to draft them, while publishing books on subjects from morality to literature to the craft of judging, including Sex and Reason, How Judges Think and Law and Literature. Somin, who often disagreed with him, called him one of the greatest legal scholars of all time.

Posner never fit neatly into a camp. The Times described him as an unapologetic iconoclast who favored pragmatism over judicial tradition. He was widely seen as a conservative, but some of his later rulings went the other way, including a 2014 opinion striking down Indiana's and Wisconsin's bans on same-sex marriage.

For conservatives, one of his most important opinions came in 2007, when he wrote the 7th Circuit's decision upholding Indiana's voter identification law, a ruling the Supreme Court later affirmed. Years later, Posner said he had come to regret that decision. He also waged a long campaign against the Bluebook, the citation manual every law student learns to dread, Somin wrote.

Somin, a property-rights scholar, noted his own disagreement with Posner's defense of the Supreme Court's Kelo decision, which allowed a city to take private homes for economic development. That disagreement captures the man: brilliant, provocative and willing to follow an argument wherever it led, even when it led away from many of the people who admired him most.

The kind of judge conservatives value most asks hard questions, writes clearly and takes ideas seriously. Posner did all three, and even his critics learned from arguing with him. His insistence that law should serve real people in the real world, not abstract theories, shaped a generation of judges appointed by presidents of both parties, and his work helped bring discipline to areas of law, like antitrust, where good intentions had too often produced bad results.

His later drift is also a lesson. It is a reminder of why so many conservatives have come to prize judges anchored in the Constitution's text and original meaning rather than in their own sense of what works best. Pragmatism without that anchor can wander. Still, few Americans did more to sharpen legal thinking over the last half century.

Posner leaves behind dozens of books, thousands of opinions and a legal culture that now takes for granted questions he forced it to ask. Law students will keep reading him for decades, often to argue with him, which is exactly what he would have wanted. He was 87.