Rhetoric Counts: What We Should Teach When We Teach Posner

Abstract

This is an essay about rhetorical strategies Judge Richard A. Posner uses to attract casebook editors and law professors to his opinions. As Judge Posner might say, "There is no crime in that." The frequency with which his opinions appear in the casebooks simply shows that they meet some demand in the market for legal educational texts.

In this Essay I reflect about the nature of that demand, why a kind of symbiosis has developed between this particular judge and the legal academy, and what that symbiosis might tell us about legal education today. Most law faculty probably assume Judge Posner's opinions are anthologized because they provide examples of economic instrumentalism in judging, and they happen to be unusually clear and even entertainingly written. I also suspect that most faculty feel reasonably comfortable dealing with Judge Posner's opinions on the merits, whether or not they approve of his judicial philosophy or his particular resolution of a case. The volume of scholarship devoted to the merits of Judge Posner's opinions suggests such comfort.

My focus is different. I think Judge Posner's rhetoric, not his economic analysis, is the principal reason his opinions are so commonly anthologized for students. His rhetoric not only presents the substantive analysis in an intriguing way but also is itself a major part of the lesson students absorb. Just as Justice Holmes's rhetoric in Lochner ultimately changed minds and the law, so too, I think, Judge Posner's rhetoric may change minds and the law. His rhetoric powerfully conveys attitudes about law and society that go well beyond a calculus of economic efficiency. Yet, these lessons are rarely identified, much less critiqued, in the typical law school classroom because most law professors focus on teaching doctrine and lack the training or supporting materials for engaging in rhetorical analysis. This Essay provides some of those materials and references for those who would like to try such an approach.

Keywords: Judges, Posner, Rhetoric, Legal Education, Casebooks, Opinions

JEL Classification: B31, N01, Z10