capitalism

386 Pound, Roscoe (1870–1964)
in the lifeboat in circumstances of genuine desperation; to
force people to give self-incriminatory testimony; to flog
prisoners; to allow babies to be sold for adoption; to allow
the use of deadly force in defense of a pure property interest;
to legalize blackmail; or to give convicted felons a
choice between imprisonment and participation in dangerous
medical experiments.
Posner’s unorthodox and often controversial approach
to the law is not limited to his academic writings. As a
judge, he demonstrates much less reverence for legal precedent
than most of his colleagues. Instead, Posner tries to
reach “pragmatic” decisions—decisions that are the “most
reasonable, all things considered, where ‘all things,’
include both case-specific and systemic consequences.” In
a series of books beginning in the early 1990s, Posner has
made the case for pragmatism, concluding that it is the
“best guide to the improvement of judicial performance.”
Posner has written more than 30 books on a huge variety
of topics. Some have argued that the substantial number
of publications that Posner has produced comes at the
expense of precision. For instance, his 2001 book on public
intellectuals was widely criticized for employing sloppy
methodology. But it seems that Posner is more interested in
raising interesting questions than in providing airtight
answers—and, in this regard, few can doubt his success.
Posner is the most frequently cited living legal theorist.
The University of Chicago Law School sponsors two
highly regarded journals—the Journal of Legal Studies and
the Journal of Law and Economics—that often feature
recent scholarship in the field of law and economics,
including some of Posner’s more famous papers. In addition,
several of Posner’s colleagues at the University of
Chicago Law School also work within the law and economics
tradition, including William Landes, Kenneth Dam, and
Ronald Coase. Indeed, this approach to law is now almost
half a century old. Posner has written that the modern law
and economics movement began with Guido Calabresi’s
famous 1961 article on tort law and Coase’s seminal 1960
paper on social cost.
See also Coase, Ronald H.; Economics, Chicago School of; Law and
Economics
Further Readings
MacFarquhar, Larissa. “The Bench Burner.” The New Yorker
10 (December 2001): 78–89.
Posner, Richard A. Antitrust Law: An Economic Perspective.
Chicago: University of Chicago Press, 1976.
———. Economic Analysis of Law. 6th ed. New York: Aspen, 2002.
———. The Economics of Justice. Cambridge, MA: Harvard
University Press, 1981.
———. Law, Pragmatism, and Democracy. Cambridge, MA:
Harvard University Press, 2003.
AS
POUND, ROSCOE (1870–1964)
Roscoe Pound was a towering figure in jurisprudence during
the first half of the 20th century. Pound was the son of
a Nebraska judge. Although his father wanted him to follow
a career in the law, the young Pound was originally more
interested in botany and even completed a monograph on
Nebraska plant life before attaining his fame as a legal educator.
A talented and brilliant lawyer, Pound had some
judicial experience as commissioner of appeals for the
Nebraska Supreme Court and served as a commissioner on
uniform state laws for Nebraska from 1904 to 1907. He
taught law at the University of Nebraska and then moved
on to teach first at Northwestern University School of Law
in Chicago and then at the University of Chicago. In 1910,
Pound became Professor of Law at Harvard and proceeded
to serve as the dean of the law school for two decades, from
1916 to 1936, giving him the then most prestigious podium
in the legal academy. Pound’s early botanical work influenced
his theories about the nature of law, and he never
abandoned the idea that law developed organically, as
social needs changed. He was an astonishingly prolific
scholar, and his two masterpieces were a five-volume work
titled Jurisprudence, which surveyed the history of the subject
in a dazzling comparative treatment of European and
American law, and a shorter monograph called The
Formative Era of American Law, in which he explored the
manner in which 19th-century American judges had altered
the English common law to meet the needs of a young commercial
and industrial republic.
Pound was the intellectual father of what he called
“sociological jurisprudence,” designed to clear away outdated
legal rules to make the law more efficient and to
make “the law in the books” come closer to what was actually
being done by “the law in action.” Pound’s early
efforts to reform the law and its procedures were widely
regarded as progressive, perhaps even radical in nature,
but his defense of the inherent wisdom and fairness of
American contract and commercial law in the 1930s made
him a target of more radical academics in the late 20th century.
Toward the end of his life, he wrote passionately in
defense of the received wisdom in the common law, and its
furthering of human liberty, and against those who sought
to dismantle its ancient doctrines and institutions. He
believed in the wisdom of systematically undertaking
research on how the law worked and could be improved,
but never lost his disdain for those who would replace the
legal rules that favored private property, commerce, and
freedom of contract with socialistic schemes of regulation
and redistribution.
See also Common Law; Judiciary; Sociology and Libertarianism
SBP