I am very sad to read of the passing of Judge Richard Posner, one of the most influential legal scholars of all time. Posner was immensely prolific, and I was drawn to his work because he wrote about several areas of interest as I began my career as a legal academic. He wrote extensively about privacy law, plus decided several important cases in the field. He also wrote a book about law and literature, a field I love and a course I’ve taught since I began teaching. He wrote several books about legal pragmatism, and I am a pragmatist. In these ways and more, Richard Posner was a towering figure in so many areas of law, and especially the areas I have focused on.
And yet, I disagreed with him about practically everything. His views about the insights literature contributes to legal thinking were far too dismissive. His interpretations of literature were frustratingly narrow and limited. His conception of privacy was myopic. His views of human nature were flawed. His approach to legal pragmatism was too thin and in many ways not really pragmatic. In nearly every area I was writing about, Posner was there, and he was wrong.
Normally, when someone is wrong so often, it can be easy to dismiss them and despise their work. Yet, I have found Posner’s work to be interesting and worth engaging with. Some of his works that I vehemently have critiqued are ones that I also consider tremendously valuable to my thinking.
As Professor Brian Leiter says in his tribute, Posner took had a “delight in intellectual sparring” and a “welcome embrace of disagreement.” I agree.
For example, I co-authored a long book review of Posner’s book, LAW, PRAGMATISM, AND DEMOCRACY (2003). In our piece, Michael Sullivan & Daniel J. Solove. Can Pragmatism Be Radical? Richard Posner and Legal Pragmatism, 113 Yale L. J. 687 (2003), we savagely critiqued the book and Posner’s views more generally.
It was with some trepidation that I sent the review to Posner. I was a junior scholar, just a few years in the academy, and the review was no-holds-barred. I thought he’d either dismiss it with a scowl or write back to tell me that it was rubbish. But instead, he wrote back and was gracious, respectful, and wanted to engage in a discussion. We had a lengthy back-and-forth correspondence. He didn’t change my views and I didn’t change his. Yet, it was a conversation that I still remember and consider highly thought-provoking and valuable. He was genuinely interested in having a conversation and discussing ideas, not just defending his turf.
I’ve learned a lot engaging with Posner’s work. His article, The Right of Privacy, 12 Georgia L. Rev. 393 (1978), was an early and influential piece. In my view, it’s mostly wrong, and often it’s extremely wrong. Yet I developed my thinking developing responses to this work. His book, NOT A SUICIDE PACT: THE CONSTITUTION IN A TIME OF NATIONAL EMERGENCY (2006) is also wrong, but I’m glad I read it and spent productive time sparring with it.
Posner’s book, LAW AND LITERATURE (1988), was one of the first books about law I read while in college in the early 1990s when I decided I wanted to be a law professor. The experience was both frustrating yet helpful. As an English major who was interested in the intersection of law and literature, I was encouraged by his pointing out many ways to bring literary insights to the law. And his book helped advance the field. Yet he was so dismissive of the impact of the use of literature in legal scholarship and his interpretations of literary works were often maddeningly obtuse.
In subsequent editions of the book, Posner tempered his dismissiveness of the law and literature field, but he never fully embraced it.
Despite the flaws of the book, I can’t understate its importance. Reckoning with it helped me hone my own approach to law and literature. It made my teaching of the course better and my use of literature in my scholarship better.
Posner taught me a valuable lesson: To influence one’s thinking, a scholar doesn’t have to present views that one agrees with. These views can even be totally off the mark. The key is whether the ideas are worth thinking about and debating. And it is in this tussle with these ideas that one can grow as a thinker. Posner’s works have shaped my thinking more than many works I’ve mostly agreed with.
Posner’s writing was always clear and engaging. I learned a lot reading his scholarship. He invited debate. His enthusiasm for literature, law, theory, and so many different topics was readily apparent. His love of being a scholar and of intellectual engagement animated so much of his work. It is this ethos where I find myself most in agreement with him. And in the endeavor of scholarly discourse, this point of agreement is one of the most meaningful and important of all.
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Daniel J. Solove is the Bernard Professor of Intellectual Property and Technology Law at the George Washington University Law School. He is the founder of TeachPrivacy, a company that provides workforce privacy, cybersecurity security, and AI training to companies and organizations around the world. He is the author of 10+ books and 100+ articles.
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