Aging and Old Age

...society is to assure a fair degree of continuity so that one's future self will not be subject to dangerous temptations — a ground on which many young people sensibly oppose ready access to gambling and drugs, and not with a view to their remote old age...

...Father Elijah is a convert from Judaism, a survivor of the Holocaust, a man once powerful in Israel...

...To criticism of his "utter preoccupation with the efficiency question," Posner calmly responded in Law and Literature (1988) that "respect for the division of labor implies that a scholar should be permitted a choice of approaches to his subject...

...At the least, Posner takes to heart the rhetorical insight he attributes to Oliver Wendall Holmes—a Posner favorite, about whom he has also written: "in areas where our own knowledge is shaky we tend to take people at their own apparent self-evaluation and thus to give more credence to the confident than to the defensive...

...the economic approach falls short...

...Lewis: A Man of Letters "I guarantee you that once you take up this book you will not put it down until the end of the world...

...and are shaken as I have been...

...But the general theme is vintage Posner: economic analysis offers new insights, even on well-established truths...

...The Promethean Richard Posner Aging and Old Age Richard A Posner University of Chicago Press 384 pages / $29.95 REVIEWED BY Jeremy Rabkin ichard Posner is one of the intellectual phenomena of our age...

...The whole premise of rational self-interest—on which Posner rests so much of his economic reasoning through all his works—comes to look very peculiar with the dissolution of a stable self...

...04 66 May 19 9 6 The American Spectator...

...The "law and economics" movement had particular attractions in the 1970's, when Posner, then a law professor at the University of Chicago, emerged as one of its leading champions...

...let those scholars who are knowledgeable about the omitted considerations bring them to the attention of the scholarly community...

...William F. Buckley, Jr...

...Yet Posner is not nearly so convincing at answering the objection as he is at anticipating it...

...As Posner himself is quick to acknowledge, however, the argument can prove far too much for a devotee of Mill: "We could end up with as many selves per person as there are years of life—or months of life, or perhaps hours of life...

...Posner has been arguing since the late 1970's that, over the past few centuries, common law judges instinctively arranged the law in wealth-maximizing terms...

...Court of Appeals for the 7th Circuit...

...One is almost agog at the dexterity with which O'Brien shapes enormously charged material into a narrative which exhibits the integrity one finds only in the very best fiction...

...He acknowledges that older people are likely to seek continual increases in government funding for Social Security and Medicare benefits, even if this means continual increases in the tax burdens on the working population...

...600 pages, Sewn Hardcover, $24.95 iZ, \VI IZI VII \\''• 1 ROM 1111 I:, "Father Elijah is that rare thing, a great novel which is also a testimony to orthodox Catholicism...

...Thomas Howard Author, C.S...

...they tend to receive less deference and respect in contemporary America than in traditional societies because, again for sound economic reasons, their accumulated life experience is of less value (or less readily communicated) to younger people...

...Ralph Mclnemy Author, Fr...

...It explores the state of the modern world by taking the central character, Father Elijah Schafer, a Carmelite priest, on a secret mission for the Vatican which embroils him in a series of crises and subterfuges affecting the ultimate destiny of the Church and the world...

...Posner's argument for the natural self-limiting tendencies of redistributive political programs comes close to that conclusion here...

...In The Economics ofJus- tice (1981) he argued that wealth maximization—the policy that looks to promote the maximum amount of whatever people will pay for—could offer the ideal basis for justice, since it offered both a large consensual element (willingness to pay) along with some protection forminorities (willingness to sell) and some stimulus to virtue (incentives to satisfy markets...

...It could not, of course, have great appeal to those who doubted that economic efficiency was the highest aim in public policy...

...It avoids the "monstrousness" of pure utilitarianism—which implies that the sadist ought to be allowed to torture his victim, if the sadist's pleasure in such activity exceeds the victim's pain...

...Was Posner serious...

...Moreover, Posner holds to the optimistic view that it is almost natural for markets to emerge, and there is an almost natural tendency for law to facilitate markets...

...As in his other works, when Posner looks at courts in this work, he does so from odd angles...

...In Law and Literature, for example, his attention ranges from Greek classics to Shakespeare and on through nineteenth-century novels in several different languages—all analyzed with the obligatory footnotes to well-regarded literary scholarship and refreshingly little economic jargon...

...Given the "multiple selves" analysis, harm to a future self is a harm to another...

...Read it and pray...

...A prophetic work and a manual of spiritual warfare...

...He argues that the gulf between young adults and people on the edge of retirement is qualitatively larger than the gulf between one "self" and another at smaller intervals...

...In The Federal Courts (1986) he argues that judges should have license to go beyond formalistic parsing of the law, but only to a point: "It is one thing for the judge to give expression to the big ideas of his age and to recognize that they need not be—in our society, are unlikely to be—ideas that command universal support...

...Here is a meaty page-turner with the pace of a thriller, beautifully written, and that something more that turns entertainment into literature...

...Though the book is largely concerned with demonstrating the relevance of economic analysis to the understanding of aging, the analysis swirls confidently over the findings of medical and sociological research in "gerontology," while freely deploying principles from ancient moralists and modern 14 economists along the way...

...For twenty years he has been "buried in the dark night of Carmel" on the mountain of the prophet Elijah...

...As no numbers are providedto indicate the scale of any such effects, the reader is left to take the matter on faith or on temperament...

...To the chagrin of many of his followers and sympathizers, he proceeded to argue in the late 1980's that even the dramatic changes in tort law in recent decades—some of which seem wildly irrational and arbitrary in their determination to find "deep pockets" to make someone else pay for individual misfortunes—also follow a hidden rationality and an inner economic logic...

...The concept of the person, in particular the responsible person, would disappear...

...Posner has published too many outrageous things in the course of his career to allow us to suspect that he is simply courting popularity with this upbeat perspective on the inter-generational conflict...

...Posner's approach, asking how legal rulings would affect economic efficiency, seemed hard-headed, empirical, and solidly grounded...

...In this richly textured tale, Father Elijah crosses Europe and the Middle East, moves through the echelons of world power, meets saints and sinners, presidents, judges, mystics, embattled journalists, faithful priests and a conspiracy of traitors within the very House of God...

...FATHER ELIJAH AN APOCALYPSE by Michael O'Brien thrilling apocalyptic novel about the condition of the Roman Catholic Church at the end of this century...

...Under a wealth maximization system, Posner calmly explained, the sadist will have to pay his victim for the privilege, and even a wealthy sadist may soon find that such expenses have exhausted his recreational budget...

...Since his appointment to that court in 1981, he has worked up a body of opinions whose clarity and insight have made them among the most widely cited rulings in contemporary case law...

...It's a novel that grips one like a thriller -- indeed it is a thriller, but also something far deeper...

...But Posner took delight in arguing that economic efficiency very well might be the most defensible aim of public policy...

...But, of course, this depends on the person and the circumstances...

...Beginning in the 197o's, he promoted the economic analysis of legal issues into the most powerful strain of contemporary legal scholarship...

...This book deserves the very exalted tribute of being reminiscent of Tolstoy and Charles Williams...

...That would make the law too quirky and unpredictable...

...A lot of Posner's work seems aimed at demonstrating that he is quite as knowledgeable as his critics...

...Please aldose payment with order ORDER TOLL-FREE AS 1 with credit card 1-800-651-1531 The American Spectator • May 1996 65 posner argues that for various purposes it is necessary to think of the younger and older version of the same person as different persons...

...What he does, characteristically, is to offer startling or simply outrageous propositions as if they were plain reason...

...The same sort of argument can justify enforced provision for old age, as in Social Security retirement contributions...

...National Review "I've read thousands of books, and this is one of the great ones...

...but the activist alternative seemed to be launching judges into an existentialist void, where rulings invoked "fundamental values" and not much more...

...Dowling Mysteries "Father Elijah is a powerful story, well told...

...reasoning in hard-headed realities, transcending mere partisan strength...

...and anyway older voters may, in some way, be "proxies" for the older selves that younger voters will eventually become...

...On this model, it is easy to explain why suicide contracts should be unenforceable: the older self may value even a very reduced form of existence more than the younger self can imagine...

...By all accounts, Posner has been a relatively cautious judge in his years on the bench...

...Though he claims to side with John Stuart Mill in rejecting governmental paternalism, Posner insists there is no inconsistency in accepting these sorts of governmental restriction or imposition on individual freedom...

...4 Whatever mistakes Posner may I 64 May 19 96 • The American Spectator make in details, it would take specialists in six different fields to run them all down...

...But the second striking thing about this book is the remarkable complacency Posner shows regarding democratic choice...

...But he denies this is a simple case of redistribution from the unorganized to the better organized, since the old may then recycle some of their wealth through gifts to their children, and the children may benefit by being less responsible for making personal provision for retired parents...

...Posner even questions the assumption that an aging judiciary will have a conservative effect on the law...

...Posner notes that polling results bear this out: young people are vastly more supportive of the proposition that it is "proper to allow incurable patients to die...

...This compelling masterpiece will stretch your imagination in the right direction...

...Having conceded that government may be necessary to ensure provision for old age, it is hard to see why government might not usefully do many other things...

...It is perhaps only a small step to the conclusion that democracy, too, in a larger sense follows an instinctive feeling for economic efficiency...

...The "legal process" jurisprudence of the postwar era—counseling deference to legislatures—had fallen into disrepute...

...Posner would deny that he sets out to shock his readers...

...In the world of scholarship, Aging and Old Age continues Posner's lifelong quest to enlarge the boundaries of the quirky and unpredictable...

...I hope tens of thousands read it...

...So, for example, he argues that old people tend to be more garrulous because, for sound economic reasons, their time is less valuable...

...Otherwise, the younger self may neglect to provide for the older self...

...There is something quite optimistic about the notion that people will choose wisely if left to themselves...

...One might reasonably argue that the point of a civilized44 What he does, characteristically, is to offer startling or simply outrageous propositions as if they were plain reason...

...Or more precisely, to adopt "a model of the individual as a locus of successive selfish selves...

...But if they are idiosyncratic, the judge has no business using them to decide cases...

...Sheldon Vanauken Author, A Severe Mercy "A classic story, smoothly crafted, told in an inspirational way...wonderfully uplifting...

...In the past fifteen years, he has written thirteen books, each one a wide-ranging, highly imaginative work on a big idea, with a dissertation's worth of footnotes, spanning specialized references from several fields...

...So "the self" turns out, by Posner's own admission, not to be a very stable or reliable vehicle of rational choice...

...Larry Bond Author, Red Phoenix Ignatius mess 33 Oakland Ave., Harrison, New York 10528 Name Address City, St, Zip Please rush me copies of Father Elijah ($24.95 ea): I enclose full payment plus $2.00 per book for shipping and handling...

...We would lose all purchase for arguing against becoming the wards of the state for the sake of our numerous future selves, for whom we cannot be trusted to make adequate provision...

...Older judges may remain more committed to ideas in fashion when they were young, as the justices of the Warren Court followed the New Deal notions of their youth, while German judges in the 1930's clung to the authoritarian notions current in their youth: with typically unnerving blandness, Posner notes that "in both cases, that of the Warren Court and that of the Nazi judiciary, judges amplified rather than moderated a social revolution...

...In one chapter he demonstrates, from data on the number of citations to opinions of particular appellate court judges, that judges continue to be influential well into their seventies, but quality output (as measured by citations) does not seem to increase with experience before that: "The judge's prejudicial experience will be depreciating even as his judicial experience is appreciating," so there is a curious balancing effect from decade to decade...

...His arguments for opposing this extension of "freedom of contract" are the most interesting part of this book —and the most suggestive about the limitations of Posner's larger intellectual project...

...So, in one of the more unnerving chapters of this book, he argues for a right of physician-assisted suicide for the terminally ill based on the individual's "weighted average of his negative utility in the doomed state and his positive utility in the...relatively healthy state that he will be in if he recgvers to the point of wanting to live after all," which he offersin mathematical formula: pUd > (r-p)Uh + c. Then he offers some empirical evidence for the claim that allowing physician-assisted suicide may actually reduce the rate of suicides, as the comforting assurance of medical assistance in the future reduces the impulse of despairing individuals to take their lives now, while still strong enough to do so on their own...

...It would anchor judicial JEREMY RABKIN is a professor of political science at Cornell University...

...Stratford Caldecott, Oxford University "Enthralling reading...

...So it is with Posner's latest offering, Aging and Old Age...

...But Posner stops short of allowing individuals to make contracts to have themselves killed at some later time, when they might be too enfeebled to consent...

...It is a perfectly sensible argument, but it does not sit well with Posner's announced commitment to follow John Stuart Mill's system of liberty...

...The Pope and the Cardinal Secretary of State call him out of obscurity and give him a task of the highest sensitivity: to penetrate into the inner circles of a man whom they believe may be the Antichrist...

...In fact, a certain optimism seems to undergird his larger intellectual outlook...

...In his spare time (or so it seems), he serves as chief judge of the U.S...

...If...

...It would not tie itself to metaphysical abstractions or fussy formalisms, but it would not leave judges to fly off in pursuit of their own values, either...