That Richard Posner is presented here, by Michael Rips, as a ‘conservative’ is hyperbole masked as understatement! Look to the ‘Columbia Law Review’ of October 1985, Vol. 85 Num.6 for his ‘An Economic Theory of the Criminal Law’:
My analysis can be summarized in the following propositions:
The major function of criminal law in a capitalist society is to
prevent people from bypassing the system of voluntary, compensated
exchange-the “market,” explicit or implicit-in situations where, because transaction costs are low, the market is a more efficient method of
allocating resources than forced exchange. Market bypassing in such
situations is inefficient-in the sense in which economists equate efficiency with wealth maximization7-no matter how much utility it may
confer on the offender.
Much of this market bypassing cannot be deterred by tort lawthat is, by privately enforced damage suits. The optimal damages that
would be required for deterrence would so frequently exceed the offender’s ability to pay that public enforcement and nonmonetary sanctions such as imprisonment8 are required.
Such sanctions are extremely costly for a variety of reasons, and
this, together with the socially worthless character of most of the sanctioned conduct, has a number of implications for efficient criminal law
doctrine, such as that unsuccessful attempts should be punished in order to economize on costlier punishments for completed crimes. The
threat of punishing attempts, as we shall see, makes the completed
crime more costly in an expected sense and therefore less likely to be
committed. I contend that the main differences between substantive
criminal law and substantive tort law can be derived from the differences in (1) the social costs of criminal and tort sanctions and (2) the
social benefits of the underlying conduct regulated by these two bodies
of law. I contend, in short, that most of the distinctive doctrines of the
criminal law can be explained as if the objective of that law were to
promote economic efficiency.
Richard Posner in his 1997 Oliver Wendell Holmes Lectures, ‘The Problematics of Moral and Legal Theory’ offers this :
I. THE LIMITS OF MORAL THEORIZING
A. The Thesis of Part I Summarized
My aim is to criticize moral theory, or, more precisely, a type of moral theory (the subject of Part 1) and then use the criticisms as a lever for challenging the type of legal theory that resembles or draws on moral theory (the subject of Part DI). I have in mind, for example, the constitutional theorizing of Bruce Ackerman, Akhil Amar, Walter Berns, Ronald Dworkin, John Finnis, Robert George, Andrew Koppelman, and David Richards, among others, occupying all points of the ideological compass, as well as the nonconstitutional legal theorizing of Jules Coleman, Joel Feinberg, George Fletcher, Charles Fried, Leo Katz, Gregory Keating, Margaret Jane Radin, and Ernest Weinrib, and again many others of diverse political hue. I shall argue that moral theory does not provide a solid basis for moral judgments, let alone for legal ones. I shall intermittently relate this thesis to one of the big and somewhat neglected stories of our time: the rise of professionalism in a sense illuminated by Max Weber’s concepts of rationalization and disenchantment. And I shall indicate how in legal as well as private life we can get along without doing or even thinking about moral theory.
My thesis has a strong form and a weak one. The strong form, again, is that moral theory does not provide a solid basis for moral judgments. The weak form is that even if moral theory can provide a solid basis for some moral judgments, it should not be used as a basis for legal judgments. Moral theory is not something that judges are, or can be, made comfortable with or good at, it is socially divisive, and it does not mesh with the actual issues in cases. I shall focus on the strong form of the thesis in Part I of the Lectures. The distinct arguments for the weak form will emerge in Part II, which is much shorter, not only because it builds on Part I, but also because, independently of the arguments in Part I, the case for the weak form is stronger.
The list of responders is impressive: Ronald Dworkin , Charles Fried, Anthony Kroman, John T.Noonan ,Jr., and Martha Nussbaum. The reader only need recall their personal experience, of being part of the jury selection process, in with the Judge proclaimes to the potential jurors, that the law court is ‘above morality’, without even a hint of irony!
In sum, I would say that Richard Posner represents/represented, an equally toxic variant of American jurisprudential philosophy, as the ‘Originalist’, ‘Textualist’ coterie’s apologetics, and its contemporary historical/political rationales for ‘The New Jim Crow’. The title of the cogently, brilliantly argued moral/political intervention of Michelle Alexander, stands as a rebuke to these political romantics. Who have attempted to re-invent themselves, under the rubric of the ultra-respectactable guise of ‘Federalism’. Amy Coney Barrett is just the latest member of the New Jim Crow Supreme Court.
P.S. On the question of ‘Textualism’ and Scalia, the mentor of Amy Coney Barrett, read Robert Post’s essay at The New York Review of Books:
Justice for Scalia
reply In reply to Great big travesty
The ABA represents a guild of unaccountable, self governing cadre of those superior beings called ‘Lawyers’, who are in charge of themselves. Unaccountable to anyone but themselves. What other ‘Profession’ like doctors, dentists, insurance sales people and cosmeticians are self-governing? ‘Well qualified’ is a term of art, for the adept practitioners of jurisprudential norms, like all that bowing and scraping, to the outworn practices of courtroom decorum! Amy Coney Barrett is just more of the Post Bork generation, of normalized jurisprudential nostalgics who look to a benighted past as the model for a possible future.