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Chinese legal scholars hear words of wisdom from Judge Richard Posner

Told about strengths, weakness of U.S. legal system

Melissa Harris

Chicago Confidential

July 14, 2013

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Law professor Randal Picker composed a spontaneous poem he called "An Ode to Dick Posner" for an audience of 80 visiting Chinese legal scholars Thursday at the University of Chicago.

Picker wrote as he read aloud:

Oh to be a federal judge,

Treated like royalty and Justin Bieber.

Sought after by all, he floats across the ether.

Picker's point was that his poem, no matter how lousy, qualified for life plus 70 years of copyright protection under U.S. law. The content itself would have seemed ridiculous had I not been sitting behind a scholar so enamored of Posner, whose lecture preceded Picker's, that she had him autograph the back of her dress with a black pen.

Posner is a federal appellate court judge in Chicago, the author of nearly 40 books on economics and the law, a blogger and one of America's most-cited legal scholars. He is thin and wore wire glasses, a suit that looked a size too big and a Cuban-style fedora that he removed when he walked inside.

His defection from the Chicago school of laissez-faire economics, most notably with 2010's "A Failure of Capitalism," was described by the New Yorker as "akin to Johnny Damon's shaving off his beard, forsaking the Red Sox Nation and joining the Yankees."

He told the scholars, most of them professors or Ph.D. candidates at Chinese universities, that a modern nation needed an independent and efficient judiciary, well-defined property rights and strong consumer protection laws, the latter of which he said was a particular problem for China. And he pointed out that it is nearly impossible to remove a federal judge, whereas the Communist Party can do so in China.

"I don't want to suggest that independence is altogether a good thing," Posner said, later declaring it the best of any alternative. "One of the things that independence breeds is the ability of a judge to be influenced by whatever factors are important to him. He's not going to worry about the wealth or influence of litigants, but he may worry about his ideology, his personality, how he reacts to criminal behavior."

Decades after the late Deng Xiaopeng declared an open-door policy welcoming massive foreign trade and investment in China, exchanges among universities, even among high schools, in the two countries are common. But not every American "summer school" for Chinese academics features Posner, whose change of philosophy warranted 5,078 words in the New Yorker. Nor do reading assignments typically include research suggesting that harsher prison conditions lead to more post-release crime, that legalized abortion contributed significantly to crime reduction in the United States in the late '80s and '90s and that the worker death rate for politically connected Chinese companies is five times that of unconnected ones.

Law professor Omri Ben-Shahar, who saw a need for the program after a visit to China, said the point is to teach the Chinese how to find and read such economic research and integrate it into their legal teachings.

"Think about food trucks in Chicago — the people who are writing the regulations might want to know how things will play out," Ben-Shahar said. "For that you need to understand how commercial parties interact and the effect on consumers, and a method to measure it statistically. That's law and economics."

Joey Burton, executive director of the law school's Coase-Sandor Institute for Law and Economics, which organizes the two-week program, said the point isn't the studies' conclusions but learning how the researchers arrived at them.

"It's supposed to be methodological," he said. "They're supposed to not be getting the answer, but getting the tools to be able to get the answers. We're very wary that it not become sort of an imperialist project."

Posner assured that.

"The (U.S.) judges, their salaries can't be reduced, every once in a while they're raised," he said. "But it's an inflexible system in that judges don't receive any bonuses for doing a good job or more work, and they don't receive cuts in their pay for being lazy. The result of this is their incentive to work hard is much weaker than most jobs in the United States. So laziness is a problem for judges."

He pointed out the same problem exists with academic tenure, prompting laughter. Posner described another U.S. judicial bias as "effort aversion."

Serving on an appellate court is like "an arranged marriage without divorce," Posner said. "The judges don't pick your colleagues, and you can't get rid of them. So you're stuck with these people. And you can be very feisty and argumentative and so on, and they'll hate you. They'll retaliate one way or another, and they won't join your opinions. So getting along becomes an important factor in judicial behavior. … People may mask disagreements. You may disagree, but (say) I'm not going to write a dissent or argue with you, because it will sour our relations."

And what do you do when a judge gets old and senile?

"There was one district judge who died recently who was 104 years old," Posner said. "It's very unlikely he was firing on all eight cylinders at that age."

Posner said he believed party loyalty — albeit, not ideology — "evaporates" among U.S. judges over time, and the gulf between male and female jurists when weighing sexual discrimination cases has narrowed. Still, he said, regional and religious differences persist, especially on the issue of gay marriage.

"One of the remarkable examples of a subjective factor in judicial behavior is reversal rates across circuits on asylum applications," Posner said. After explaining the concept of political asylum, he said, "It turns out that the rate of reversal (of denials) ranges from 34 percent in my court (the 7th Circuit U.S. Court of Appeals) to 2 percent in the 4th Circuit, which is Virginia, North Carolina."

The researchers, Posner said, compensated for regional differences in asylum seekers' country of origin and still concluded that "wherever you come from, if you end up in Virginia versus Illinois, your chances of being deported are immensely greater."

"All these federal courts are applying the same body of law, so how do they reach such different results?" Posner asked. "Well, it's a fact there's much more hostility to immigrants among Southerners. … And also, I think, this is a casual impression that judges who are recent Americans … those judges in my experience are far more sympathetic to asylum seekers, than the people whose families have been in the United States for a number of generations."

This should matter to them, he argued, as a number of asylum seekers are Chinese fearing persecution over the one-child policy.

mmharris@tribune.com

Twitter @chiconfidential