Document Type

Article

Publication Date

1994

Abstract

Richard Posner’s, the Chief Judge of the United States Court of Appeals for the Seventh Circuit, judicial actions have been criticized, primarily for inconsistently commingling economic analysis with other approaches to decisionmaking in an effort to reach personally pleasing results that are at odds with Posner's professed commitment to methodological rigor. Although criticism of Posner's judging is diverse, a common theme is that he too frequently marshals his argumentative force merely to uphold the economic rights of the powerful. In other words, according to the critics, after the rush of intellectual excitement subsides, litigants and the justice system are left with case results little different from those of the nineteenth century Supreme Court dominated by advocates for commercial interests.

In Troupe, it appears that the judicial Posner fell prey to his own personal prejudices against pregnancy discrimination law as expressed in his books and articles while at the same time contradicting his professed belief that judges generally should show deference to the legislature on matters of social policy. In addition to this basic contradiction--that Posner may not be practicing the jurisprudence he seemingly preaches--Troupe illustrates the potential in Posner's jurisprudential construct for producing judgments ostensibly defensible on the surface, but which serve merely to enforce the judge's own personal preferences. This article posits that in Troupe, Posner's dislike for the discrimination law and his disaffection for claimants invoking gender discrimination law overcame his professed commitment to judicial activity constrained by deference to legislative direction. In contrast, we argue for a more faithful view of the Pregnancy Discrimination Act.

Publication Citation

46 Fla. L. Rev. 193 (1994).