Like the theory of public choice, which is invoked by public figures to abdicate responsibility for seeking common solutions to problems, Posner's application of economic theory to the law favors expedience over principle.
To defend Bush v. Gore he claims the Court's blatantly unconstitutional intervention was necessary to prevent "constitutional crisis" -- an outcome that had an unknown chance of occurring, an unknown scope, and an unknown level of damage or benefit to the nation.
There can be no justification for violating our right to have confidence in the outcome of our elections, usurping the role of Congress, and putting our Constitution into breach. No matter how scholarly in form or complex he makes it, Posner's rationalization that Bush v. Gore is justifiable must be rejected as Un-American and immoral.
Posner also defends Bush's program of illegal surveillance (
WashPo Dec-2005) by focusing on the program's use of the systems formerly known as Total Information Awareness (TIA) to violate our right to privacy and comb through masses of our emails, phone calls, purchases, banking transactions, Internet usage, and other personal data.
Posner asserts that FISA is inadequate to deal with this "new technology." He sidesteps discussion of Constitutionality and completely ignores the fact that Americans unequivocally rejected TIA and demanded that Congress put a stop to it three years ago.
It's bad enough that the executive branch demonstrated their disdain for the will of the electorate when they slapped on new labels and kept TIA going (
TIA Lives On, 23-Feb-06, National Journal). We don't need Posner out there asserting his legal authority to excuse the inexcusable and deceive us.