{"id":9024,"date":"2010-02-17T02:39:06","date_gmt":"2010-02-17T07:39:06","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=9024"},"modified":"2010-02-17T10:54:58","modified_gmt":"2010-02-17T15:54:58","slug":"judge-posners-argument-concerning-a-failure-of-capitalism","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2010\/02\/judge-posners-argument-concerning-a-failure-of-capitalism\/","title":{"rendered":"Judge Posner’s Argument Concerning “A Failure of Capitalism”"},"content":{"rendered":"

\"88px-Richard_posner_harvardz\"<\/a>Surely there are more pressing things to do at this hour than scan my Google Reader headlines (well, actually, I’ve become a Feedly <\/a>user, but the Feedly feed comes from Reader, mostly).<\/p>\n

Nonetheless, \u00a0I couldn’t pass up\u00a0today’s essay<\/a> by Seventh Circuit Judge Richard A. Posner, on Foreign Policy’s website. \u00a0 Titled “The Real Danger of Debt,” the article is described as having been “adapted from” Judge Posner’s book, “A Failure of Capitalism: The Crisis of ‘o8 and the Descent into Depression.” \u00a0In the article, Posner describes the “deeply wounded economy” of the United States, explaining that, essentially, “private savings are being borrowed by the government, combined with the government’s foreign borrowing, and then transferred to households to enable them to maintain their accustomed level of consumption. People are saving more, but government borrowing overwhelms their saving, with the result that aggregate saving — public plus private — is negative.”<\/p>\n

He goes on to outline, in his usual clear, bracing style, the steps by which this state of affairs could lead to rising interest rates, instability in the value of the dollar, the loss of the dollar’s status as the chief \u00a0international reserve currency, increased savings rates, and decreased economic growth:<\/p>\n

As real interest rates rise as a consequence of a growing public debt and declining demand for the U.S. dollar as an international reserve currency, U.S. savings rates will rise and, by reducing consumption expenditures, slow economic activity. Economic growth may also fall as more and more resources are poured into keeping alive elderly people, most of whom are not highly productive members of society from an economic standpoint. The United States may find itself in the same kind of downward economic spiral that developing countries often find themselves in.<\/p><\/blockquote>\n

This ominous prediction of where current trends may lead us is dramatic in itself \u00a0(although, sadly, much less dramatic than it would have seemed in 2007). \u00a0But rather than the worrisome warnings about a second economic depression, the passages that struck me most are the ones characterizing the current political situation in the United States. \u00a0<\/p>\n

First, there are these paragraphs (and others, but these two are enough to get the flavor of it) where Posner develops a thesis that “the country might be becoming in important respects ungovernable”:<\/p>\n

It is true that as growing deficits reduce the value of the dollar relative to other currencies, while making imports more expensive, American exports will grow, implying a shift of workers and capital from services to manufacturing. But the shift, reversing a long-term decline in manufacturing relative to services, may be a painful and protracted one, just as China’s transition from an export-led manufacturing economy to a domestic consumer economy is likely to be painful and protracted. Any major restructuring of a country’s economy will produce heavy unemployment as a byproduct until the restructuring is complete.<\/p>\n

The adjustments that will be needed — if the economy does not outgrow an increasing burden of debt — to maintain the U.S. economic position in the world may be especially painful and difficult because of features of the American political scene that suggest that the country might be becoming in important respects ungovernable. The perfection of interest-group politics has brought about a situation in which, to exaggerate just a bit, taxes can’t be increased, spending programs can’t be cut, and new spending is irresistible. If one may judge by the Bush administration’s fiscal improvidence, these tendencies are bipartisan.<\/p><\/blockquote>\n

And, then in another paragraph, Posner identifies characteristics of the “broader social culture” of the United States that “may also impede renewed economic progress”:<\/p>\n

American political culture is sick, but the broader social culture may also impede renewed economic progress. America’s growth has been promoted by the “can-do” attitude of its people, their rejection of fatalism, their individualism — qualities conducive to innovation, ambition, and hard work. But the rejection of fatalism is also a major factor in the country’s soaring medical costs, as its old people (and often their children) insist that every effort be made, at taxpayer expense, to extend their lives. As a result, 25 percent of Medicare costs are incurred in treating elderly people in the last few months of life. American individualism is also a barrier to fiscal belt-tightening through tax hikes or spending cuts. A can-do attitude can and often does express itself in a refusal to worry about looming crises. Americans can overcome any challenge. So not to worry! Qualities that promote a country’s fortunes in one era may undermine them in another.<\/p><\/blockquote>\n

I will leave to others the discussion of the accuracy of Judge Posner’s economic forecasts, analysis of the current political crises, and characterization of America’s social culture. \u00a0Instead, what fascinates me is his mastery of written argument. \u00a0More precisely, written argument directed at me and many other readers of this blog: \u00a0people trained as lawyers, including (maybe especially?) legal academics.<\/p>\n

As Kate O’Neill pointed out last year, in her essay, Rhetoric Counts: \u00a0What We Should Teach When We Teach Posner<\/a><\/em>, 59 Seton Hall Law Rev. 507, something about Posner’s writing has resulted in his opinions being included, much more often, on average, than other judges’, in law school textbooks. \u00a0 \u00a0O’Neill reflects on why academics are so taken with Posner’s opinions, speculating “that\u00a0most law faculty assume Judge Posner\u2019s opinions are anthologized because they provide examples, often controversial, 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\u2019s 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\u2019s opinions suggests such comfort.”<\/p>\n

O’Neill’s interesting thesis is that this comfort with the way Judge Posner articulates his arguments renders the audience more susceptible to accept certain assumptions that underly the arguments. \u00a0As O’Neill explains it,<\/p>\n

I think Judge Posner\u2019s 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\u2019s rhetoric in Lochner ultimately changed minds and the law, so too, I think, Judge Posner\u2019s 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.<\/p><\/blockquote>\n

She suggests that law professors should teach this content of Posner’s opinions, the rhetoric itself, because understanding that content will train students to think and read critically:<\/p>\n

Judge Posner\u2019s rhetoric is a good chunk of his message, not just the means by which he conveys it. When the author is as skilled in rhetoric as Judge Posner, law professors\u2019 inattention to rhetoric allows students, and perhaps faculty as well, to receive more information than they may consciously perceive as being communicated. Such inattention may produce lawyers who are less skilled in critical reading and less conscious of persuasive rhetorical strategies than they should be.<\/p><\/blockquote>\n

I tend to agree with O’Neill, at least regarding this point, that a good legal education must necessarily address, head-on, the fact that so much of legal analysis is rhetorical strategy, and of a particular type: \u00a0an effort to get your audience to accept your underlying assumptions, an effort to lead the decision-maker to “receive more information than [he or she] consciously perceive[s] as being communicated.” \u00a0I think I may use the striking passages from Posner’s recent essay, above, to try do just that.<\/p>\n

It seems likely, in any case, that students at this law school are called on to engage in critical thinking about rhetoric of just the sort that O’Neill advocates; see, for example, Professor Fallone’s deconstruction of\u00a0 his argument in an op-ed piece<\/a>, and his approach to teaching standing doctrine and the <\/a>Friends of the Earth<\/a><\/em> case<\/a>. \u00a0Or consider Professor O’Meara’s application of narrative theory to understand the development of the <\/a>Strickland<\/a><\/em> doctrine<\/a>. \u00a0Commenters (if any readers are still with me…) please feel free to add to this short list of examples.<\/p>\n","protected":false},"excerpt":{"rendered":"

Surely there are more pressing things to do at this hour than scan my Google Reader headlines (well, actually, I’ve become a Feedly user, but the Feedly feed comes from Reader, mostly). Nonetheless, \u00a0I couldn’t pass up\u00a0today’s essay by Seventh Circuit Judge Richard A. Posner, on Foreign Policy’s website. \u00a0 Titled “The Real Danger of […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[19,68,34,42,44,23],"tags":[],"class_list":["post-9024","post","type-post","status-publish","format-standard","hentry","category-federal-law-legal-system","category-judges-judicial-process","category-legal-education","category-legal-writing","category-political-processes-rhetoric","category-seventh-circuit","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/9024","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=9024"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/9024\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=9024"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=9024"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=9024"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}