This commentary was written in response to a talk by Richard Posner,
Chief Judge of the Seventh Circuit Court of Appeals, titled
"Past-Dependency, Pragmatism, and Critique of History in
Adjudication and Legal Scholarship." The presentation was given on
November 6, 1999, at Stanford Law School as part of the "Past
Dependencies" Conference. Posnerís talk was based on a
forthcoming article that will be published in the University of
Chicago Law Review. The talk was moderated by Kathleen Sullivan,
Dean of the Stanford Law School, and commented upon by Erika Frick and
Professors Jack Rakove, Richard Rorty, and Hayden White. Their responses
will be briefly discussed towards the end of this commentary.
* * J.D. Candidate, Stanford Law School, 2001; Ph.D. Candidate (Political Science), University of Minnesota, 2000; B.A. Amherst College, 1993. The author would like to thank Sahand Shaibani for his editing and helpful comments on earlier drafts of this commentary.
1. Karl Marx, The Eighteenth Brumaire of Louis Bonaparte 15 (International Publishers Co. 11th prtg. 1987) (1963) [hereinafter Marx, Eighteenth Brumaire].
2. There is a large debate within historiography over the validity of historical inquiry. I will not delve into this debate here except to the extent that it bears upon the questions of jurisprudence raised by Posnerís talk.
3. See Thomas S. Kuhn, The Structure of Scientific Revolutions 160-173 (3d ed. 1996) (arguing for an "evolutionary view of science" which conceives science as evolving from "primitive beginnings" to a more refined and detailed understanding of nature and an efficient research methodology through shifts in scientific "paradigms," but as not evolving toward anything, nor becoming closer to the truth: "We may, to be more precise, have to relinquish the notion, explicit or implicit, that changes of paradigm carry scientists and those who learn from them closer and closer to the truth.") Id. at 170.
4. Richard A. Posner, Past-Dependency, Pragmatism, and Critique of History in Adjudication and Legal Scholarship, U. Chi. L. Rev. (forthcoming 2000) (manuscript at 24, on file with author) [hereinafter Posner, Past-Dependency].
5. Id. at 1.
6. In making this assessment, Posner overlooks Nietzscheís discussion of time as "eternal recurrence," in which one wishes for the perpetual repetition of the past as a way of affirming the path that one has chosen in life. See generally Alexander Nehamas, Nietzsche: Life as Literature (1985). However, there is a great deal of dispute as to what Nietzscheís eternal recurrence means, and given that Posner interprets Nietzsche as putting the past at the service of the present, it is not entirely clear that the assessment just given would be inconsistent with the one offered by Posner. See Posner, Past-Dependency, supra note 4, at 6.
7. Friedrich Nietzsche, On the Uses and Disadvantages of History for Life, in Untimely Meditations (R. J. Holingdale trans., 1983).
8. Id. at 70.
9. Id. at 75.
11. Id. at 76.
12. Posner admits that this position is somewhat inconsistent with the previous one. However, he argues that both share the similarity of failing to address current problems on their own merits. See Posner, Past-Dependency, supra note 4, at 3.
13. Nietzsche, supra note 7, at 89-91.
14. See Posner, Past-Dependency, supra note 4, at 4.
16. Id. at 4-5.
17. Id. at 7.
18. 381 U.S. 479 (1965). The court held:
Id. at 485-86. (citations omitted)
19. Id. at 485.
20. See Posner, Past-Dependency, supra note 4, at 8-11. In Posnerís words:
Id. at 10.
21. In response to a different question, Posner did criticize the use of history to "puff up" opinions lacking substance.
22. See Posner, Past-Dependency, supra note 4, at 20. Posner argues that if the public did in fact care about consistency with "ancient texts and precedents," Robert Bork would have been confirmed as a Supreme Court Justice.
24 Id. at 18.
25. Id. at 23.
26. See id. at 12. The title of the conference, "Past Dependencies," is a somewhat accidental play on the concept of path dependency. In a meeting to discuss possible future conference topics, one of the organizers, Hans Ulrich Gumbrecht, misheard "path dependency" as "past dependency." The rest is, as they say, history.
27. See id.
28. See id. at 12-13. It is not clear here if Posner is talking purely in terms of economic efficiency or also in terms of the political opposition that may arise were one to abandon what many in the public view as commonly held rights. For instance, Posner elsewhere critiques the rise in the criminal rights of the accused under the Warren Court for contributing to an increase in crime rates. He contends that limiting resources for public defenders would force them to choose those cases in which the accused are most likely to be acquitted. This narrowing of focus would lead to far more effective counsel than the current legal regime where the requirement that everyone receive counsel leads to ineffective counsel for all. See Richard A. Posner, The Problematics of Moral and Legal Theory 160-64 (1999) [hereinafter Posner, Problematics].
29. See Posner, Past-Dependency, supra note 4, at 16. Posner, who is quite a prolific writer and is known as one of the founders of the law and economics school of thought, delves in many other places into how a judge is to make decisions as to what the goals of a society are and what constraints exist on the judge. See, e.g., Posner, Problematics, supra note 28. It is beyond the scope of this commentary to address these issues except as they relate to the importance of the past in adjudication. The basic principle is that Posner seeks to look at the law in terms of the economic effects it has on the general public. See, e.g., Richard A. Posner, Economic Analysis of Law (3d ed. 1986). Indeed, Posner argues that judges should be limited largely to economic considerations and not base their decisions on questions of morality.
30. Richard A. Posner, The Problems of Jurisprudence 464 (1990) [hereinafter Posner, Problems of Jurisprudence].
31. At one point during the talk, Rorty light-heartedly accused Posner of having a "phobia for romance." Despite the possibility for a definitive response, this question was not directed at Posnerís wife, who was sitting in the audience at the time.
32. See, e.g., Karl Marx, Preface to A Contribution to the Critique of Political Economy (renamed by editor, Marx on the History of His Opinions), in The Marx-Engels Reader 3, 4-5 (Robert C. Tucker ed., 2d ed. 1978).
33. See Posner, Problems of Jurisprudence, supra note 30, at 465.