The perils of Posner

US Federal judge, bestselling author and highly-cited economist Richard Posner has been taking a hammering in the Oz blogworld lately. First there was a discussion of his book on public intellectuals, where the reaction ranged from lukewarm (me) to scathing (Don Arthur). Along the way, Tim Dunlop and Ken Parish weighed in with some acute observations. Now his contribution to law and economics in general is up for debate, with Ken panning him again and Jason Soon offering a very qualified defence.
I’ve read a fair bit of Posner’s stuff over the years, and I can see why he elicits this kind of reaction. He’s very bright, but tends to be glib and superficial, and takes too much delight in being deliberately shocking. (Actually, I’ve got a fair bit in common with him, and have tried hard to train myself out of these kinds of faults).
More fundamentally, I think he’s focused on the least convincing ideas in Coase, namely that judges and the common law should make judgements in line with efficiency. I’m not a big fan of judicial legislation, though I dislike even more the kind of spurious literalism that allowed people like Garfield Barwick to impose their own political views while posing as conservatives. I prefer an ‘original intent’ approach to the interpretation of the law, with sensible modification in the light of changing social and technological conditions.
I find a lot more interest in the other great interpreter of Coase, James Buchanan, though I think he is also fundamentally wrong in trying to find an unchallengeable base for property rights in some sort of contractarian myth.
What does all this mean for the tortious liability of ski-lift operators? I’ll tell you next time.