between such abuse and the use of children in the production of pornographic materials. In 1990, the Court went even furt her in upholding a state law prohibiting the possession and viewing of child pornography (Osborne v. Ohio, 495 U.S. 103, 110 S. Ct. 1691, 109 L. Ed. 2d 98). In the 1980s some feminists began an attack on pornography and the way the Supreme Court had structured the legal debate using the First Amendment. Led by law professor CATHARINE A. MACKINNON and writer ANDREA DWORKIN , they proposed that women be permitted to sue pornographers for damages under CIVIL RIGHTS laws. In 1982, in an alliance with political conservatives opposed to pornography, MacKinnon and Dworkin convinced Indianapolis officials to pass a municipal ordinance based on their civil rights approach. The ordinance described pornography as “a discriminatory practice based on sex which denies women equal opportunity in society” and defined it as “the graphic sexually explicit subordination of Feminist Perspectives on Pornography P ornography is a battlefield in U.S. law. For decades, courts have strug- gled to find a middle ground between opponents of obscenity and defenders of free speech. This debate began to shift in the 1970s as feminists introduced new theories. Obscenity and free speech were no longer the central issues, these critics argued. Their paramount concern was violence. They claimed a causal link between pornographic depictions of women, and crimes ranging from harass- ment to rape. Beginning in the 1980s, some feminists proposed legislation that sought to control pornography in new and dramatic ways. They met strong opposi- tion, and none of their legislation survived vetoes or court challenges. Inspired by the women’s liberation movement in the 1960s, many feminists began to decry pornography as sexist. In later years, a sharper critique began to emerge. Some feminists believed that pornography was a deliberate means of subordinating women to men, thereby maintaining inequality. One leading feminist critic, Andrea Dworkin, took this theory even further. In books such as Pornography: Men Possessing Women (1979), Dworkin interpreted porno- graphic publications and films as training guides for committing sexual violence. Dworkin’s writings have divided fem- inists. Her detractors argue that she stands outside the mainstream of feminism. Her supporters cite high rates of sexual violence as proof that Dworkin is right. Both sides frequently debate this point. The causal link between pornography and violence rests on anecdotal evidence. Dworkin finds this evidence sufficient, and she contends that women are not believed when they report an experience of being sexually assaulted by men who view pornography. While not den ying these personal accounts, critics reply that a definite link can never be scientifically established. One prominent feminist col league of Dworkin’s is Catharine A. MacKinnon. An author and professor of law, Mac- Kinnon is regarded as a pioneer in providing legal recourse for victims of sexual harassment and rape. She and Dworkin created the intellectual frame- work for viewing pornography in a novel light: n ot merely as a form of speech but instead as active discrimination and violence against women. Their arg ument brushed aside traditional First Amend- ment considerations. If pornography harmed women, they claimed, then it was not deserving of legal protection as speech. This view had its first legal expression in a case they considered bringing to stop showings of the film Deep Throat, whose star, Linda Lovela ce, contended that she was raped through- out the making of the film. Ultimately, no suit could be b rought because the statute of limitations had expired, but thecaseservedastheirfirststeptowarda practical attack on pornography. MacKinnon and Dworkin tried a legislative solution in Minneapolis in 1983. As coteachers of a course at the University of Minnesota Law School, they were invited to draft a law aimed at keeping adult bookstores out of residential neigh- borhoods. Zoning ordinances had failed in this end. MacKinnon and Dworkin pro- posed amending the city’s civil rights ordinance to include a new legal claim: A woman who proved that she had been harmed by pornographic material could sue its makers and distributors. This groundbreaking approach avoided traditional definitions of obscen- ity. It defined pornography as the sexually explicit subordination of women in pic- tures or words. In the language of the proposed ordinance, subordination in- cluded images of women who “experience sexual pleasure in being raped” or in being “penetrated by objects or animals.” Two provisions outlined the conditions under which a woman could bring suit: a plaintiff would have to prove that a pornographic work had harmed her in a specific way, or that it had harmed women in general. The hearings before the Minneapolis City Council galvanized de- bate and demonstrations. In one incident, a woman protesting pornography and its degrading aspects toward women, set herself on fire by a downtown newsstand. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 38 PORNOGRAPHY women, whether in pictures or words,” especially in a violent or degrading context. The ordinance made unlawful the production, sale, exhibition, and distribution of pornography and gave anyone injured by a person who has seen or read pornography the right to bring a civil suit against the maker or seller. Supporters of the ordinance argued that the legislation was a civil rights measure whose purpose was to fight SEX DISCRIMINATION. In their view, the ordinance regulated conduct rather than free speech and thus did not violate the First Amendment. They argued that even if pornography was viewed as speech, it should be treated as a low-value form of speech that was not entitled to First Amendment protection. All of these arguments were rejected by the U.S. Court of Appeals for the Seventh Circuit in Hudnut v. American Booksellers Association, Inc., 771 F.2d 323 (7th Cir. 1985). The court agreed that pornography affected how people view the world and their social relations but observed that The ordinance drew attacks from traditional free speech advocates, includ- ing the American Booksellers Association and the American Civil Liberties Union (ACLU). Opponents argued that the ordinance was vague, allowing too much subjectivity in deciding what material constituted subordination. Any material, they claimed, could be deemed offensive in this way. One group making this argument called itself the Feminist Anti- Censorship Task Force (FACT). Among FACT’s 50 prominent members were the authors Betty N. Friedan, Kate Millett, and Adrienne Rich. They filed a legal brief attacking the ordinance on the ground that it reinforced sexist stereo- types. In a strongly worded rebuttal, MacKinnon denounced the group as being apologists for male supremacists. The Minneapolis antipornography ordinance twice failed to pass. Mayor Donald M. Fraser vetoed it in December 1983 and in July 1984. But the ordinance served as a model for others and in 1984 MacKinnon and Dworkin met with greater success in Indianapolis. Again they proposed modifying existing ordi- nances with amendments that would allow any woman the means to seek an order prohibiting offensive pornography, as well as to seek damages. On April 23 and June 11, 1984, the Indianapolis – Marian County City Council passed General Ordinances 24 and 35, which amended chapter 16 of the Human Relations and Equal Opportunity Code. Indianapolis Mayor William H. Hudnut III signed the ordinances into law. The law was challenged in American Booksellers Ass’n v. Hudnut, 598 F. Supp. 1316 (S.D. Ind. 1984). In 1985 it was declared unconstitutional (Hudnut, 771 F.2d 323 [7th Cir. 1985]). Judge Frank Easterbrook based his ruling on a long- standing tradition of First Amendment protection for “opinions that the govern- ment finds wrong or even hateful.” However, he accepted the ordinance’s central argument about pornography. He agreed that “depictions of subordina- tion” tend to perpetuate subordination in other areas of life, causing sexual dis- crimination, harassment, rape, and do- mestic abuse. The U.S. Supreme Court affirmed Easterbrook’s decision in 1986 (Hudnut, 475 U.S. 1001, 106 S. Ct. 1172, 89 L. Ed. 2d 291, aff’d without comment, reh’g denied, 475 U.S. 1132, 106 S. Ct. 1664, 90 L. Ed. 2d 206). Following the Court’s ruling, MacKinnon and Dworkin refined their approach in a proposed 1992 bill for the Massachusetts state legislature titled An Act to Protect the Civil Rights of Women and Children (H. 5194). Sponsored by Representative Barbara Hildt (D-Mass.), the bill focused on individuals who could prove that they were assaulted as a result of pornography. The bill allowed victims to collect damages in civil court from publishers, filmmakers, and distributors. In testimony before the Massachusetts Legislature, MacKinnon argued that por- nography enjoyed better legal protection than did women. This time, opposition came from civil rights groups as well as the New York State chapter of the National Organization for Women (NOW). NOW condemned the bill for taking the onus off criminals and placing it instead on publishers. Although con- sidered in committee, the bill was never voted on. MacKinnon and Dworkin’sviewson pornography are certainly not shared by all feminists. Nadine Strossen, professor oflawatNewYorkLawSchool,has written, lectured, and practiced widely in the areas of constitutional law, civil liberties, and international human rights. Since 1991 she has served as president of the ACLU, the first woman to head the nation’slargestandoldest civil liberties organization. Strossen believes that censorship, and not por- nography, is the true enemy of women’s rights. For too long, she argues, censor- ship has been used to repress informa- tion relev ant to women. Strossen lays out her feminist perspective in Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights (1995). By arguing for “procensorship,” Strossen asserts, feminists such as Dworkin and Mackinnon are ultimately doing more harm than g ood since any restriction of free speech is detrimental to all people. FURTHER READINGS Chancer, Lynn S. 1998. Reconcilable Differ- ences: Confronting Beauty, Pornography, and the Future of Feminism. Berkeley: Univ. of California Press. Dines, Gail. 1998. Pornography: The Produc- tion and Consumption of Inequality. New York: Routledge. Elias, James, et al. 1999. Porn 101: Eroticism, Pornography, and the First Amendment. Amherst, N.Y.: Prometheus Books. Strossen, Nadine. 1995. Defending Pornogra- phy: Free Speech, Sex, and the Fight for Women’s Rights. New York: Scribner. CROSS REFERENCES Feminist Jurisprudence; Sex Discrimination. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PORNOGRAPHY 39 the same could be said of other speech, including expressions of racial bigotry. Yet, these kinds of expression are protected as speech because to do otherwise would give the government control of “all institutions of culture” and allow it to be the “great censor and director of which thoughts are good for us.” The court, adhering to the definition of obscenity first articulated in Miller, ruled that the ordinance’s definition of pornography would cover many works that are not obscene because it would not take the value of the work as a whole into account or consider the work as a whole. The court of appeals’ decision effectively ended this approach to the regulation of pornography. In the 1990s attention was paid to the new ways in which technology could supply pornog- raphy. The use of computer bulletin boards and the Internet to distribute pornography nation- ally and internationally led to the enactment of the federal Communications Decency Act of 1996 (CDA) (47 U.S.C.A. § 223). CDA was designed to outlaw obscene and indecent sexual material in cyberspace, including the Internet. In Reno v. AMERICAN CIVIL LIBERTIES UNION, 521 U.S. 844, 117 S. Ct. 2329, 138 L. Ed. 2d 874 (1997), the Supre me Court overturned provi- sions of the CDA prohibiting transmission of obscene or indecent material by means of a TELECOMMUNICATIONS device. The Court held that the provisions represented a content-based restriction, in violation of the Free Speech Clause of the First Amendment. Congress qui ckly responded by passing the Child Onli ne Protection Act (COPA), which sought to limit restrictions on pornographic material to communications made for commer- cial purposes. The law also incorporated the three-part obscenity test that the Supreme Court formulated in Miller v. California. The American Civil Liberties Union (ACLU) and a group of online Web site operators challenged the constitutionality of COPA, arguing that it was overbroad. In addition, the plaintiffs contended that the use of the community standards test would give any community in the United States the ability to file civil and criminal lawsuits under COPA. This meant that the most conservative community in the country could dictate the content of the Internet. The Supreme Court, in Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002), issued an ambiguous decision. The use of community standards did not, by itself, make the statute overbroad and unconstitutional under the First Amendment. Apart from that conclusion, the Court could not agree, with five of the justices producing separate opinions. Despite this situa- tion, a majority expressed numerous reservations about COPA, including the concern that, absent a national standard, it would be difficult for operators of Internet services to know when they had crossed a line and had subjected themselves to liability. The case was remanded to the lower courts for a full examination of the law on all issues. Congressional efforts to curb the spread of child pornography also ran in to judicial road- blocks based on First Amendment concerns. The Child Pornography Prevention Act of 1996 (CPPA) was dealt a fatal blow when the U.S. Supreme Court, in Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L. Ed.2d 403 (2002), ruled that two of its three major provisions were unconstitutional. The Court found that some of the prohibitions contained in the act were written in a manner that resulted in the CENSORSHIP of legally protected speech as well as unprotected speech. It also could be said that the language in the act had a “chilling effect” on the exercise of free speech because it tended to inhibit not only proscribed forms of expression, but also those forms of expression that were not proscribed. The problem with the CPPA was not that it prohibited child pornography, but that its language also attempted to prohibit other pornographic material that “appear[ed] to be” or that “convey[ed] the impression” that it depicted “a minor engaging in sexually explicit conduct.” This prohibition extended to “any visual depic- tion, including any photograph, film, video, picture, or computer or computer-generated image or picture.” Pornographic material that appears to depict minors, but is actually produced through creative computer imaging or through the use of youthful-looking adults, is often referred to as “virtual child pornography.” Thus, the CPPA prohibited not only actual child pornography, but also pornographic material pandered as child photography, even though real children were not used. The Supreme Court concluded that the CPPA failed to meet the Miller criteria because there was no requirement to prove that the material was “offensive” or that it “appealed to prurient GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 40 PORNOGRAPHY interests.” In other words, all material depicting sexual conduct of persons under 18 years of age would be prohibited, despite any underlying merit or value. Therefore, such prohibitions contained in the language of the CPPA were overbroad and, accordingly, must be rendered invalid as abridging First Amendment rights. Congress responded by passing the Prosecu- torial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003, 117 Stat. 650. The law focused on the pandering of child pornography–i.e., the offering or soliciting of supposed pornographic images. The Supreme Court, in U.S. v. Williams, __U.S.__, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008), upheld the statute. The Court found that the law only “prohibits offers to provide and requests to obtain child pornography.” The law did not require the “actual existence” of child pornography. Rather than focusing on the underlying material, the law targeted the “collateral speech that intro- duces such material into the child-pornography distribution network.” The material or pur- ported material that could not be pandered tracked the holdings of the Court on material that lacked First Amendment protection: ob- scene material depicting actual or virtual chil- dren engaged in sexually explicit conduct. The statute also required a DEFENDANT to “knowingly” pander material that the defendant believes to be child pornography. Therefore, if a defendant, through a mistaken description, leads another party to believe that the material is child pornography, and the defendant does not have the subjective belief that the material is child pornography, then there is no violation of this part of the law. As to objections that the law could ensnare the unwary or the innocent, the Court dismissed them as “an endless stream of fanciful hypothesis.” FURTHER READINGS Barron, Jerome, and Dienes, Thomas. 2006. First Amend- ment Law in a Nutshell. 6th ed. St. Paul, Minn.: Thomson West. Cornell, Drucilla, ed. 2000. Feminism and Pornography. New York: Oxford Univ. Press. Easton, Susan. 1994. The Problem of Pornography: Regulation and the Right to Free Speech. New York: Routledge. Williams, Linda, ed. 2004. Porn Studies. Durham: Duke Univ. Press. CROSS REFERENCES Censorship; Freedom of Speech; Movie Rating; Telecom- munications; Theaters and Shows. POSITIVE EVIDENCE Direct proof of the fact or point in issue, as distinguished from circumstantial proof; proof that if believed, establishes the truth or falsity of a fact in issue and does not arise from a presu mption. CROSS REFERENCE Evidence. POSITIVE LAW Those laws that have been duly enacted by a properly instituted and popularly recognized branch of government. Positive laws may be promulgated, passed, adopted, or otherwise “posited” by an official or entity vested with authority by the government to prescribe the rules and regulations for a particular community. In the United States, positive laws come in a variety of forms at both the state and federal levels, including legislative enactments, judicial orders, executive decrees, and administrative regulatio ns. In short, a posi- tive law is any express written command of the government. The belief that the only legitimate sources of law are those written rules and regulations laid down by the government is known as POSITIVISM. POSITIVISM A school of jurisprudence whose advocates believe that the only legitimate sources of law are those written rules, regulations, and principles that have been expressly enacted, adopted, or recognized by a government body, including administrative, executive, legislative, and judicial bodies. Positivism sharply separates law and moral- ity. It is often contrasted with NATURAL LAW, which is based on the belief that all written laws must follow universal principles of morality, religion, and justice. Positivists concede that ethical theories of morality, religion, and justice may include aspirational principles of human conduct. However, positivists argue that such theories differ from law in that they are un- enforceable and therefore should play no role in the interpretation and application of legislation. Thus, positivists conclude that as long as a written law has been duly enacted by a branch of government, it must be deemed valid and binding, regardless of whether it offends any- one’s sense of right and wrong. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION POSITIVISM 41 Positivism serves two values. First, by requiring that all law be written, it ensures that the government will explicitly apprise the members of society of their rights and obliga- tions. In a legal system run in strict accordance with positivist tenets, litigants would never be unfairly surprised or burdened by the govern- ment imposition of an unwritten legal obligation that was previously unknown and nonexistent. The Due Process Clauses of the Fifth and Fourteenth Amendments incorporate this posi- tivist value by mandating that all persons receive notice of any pending legal actions against them so that they can prepare an adequate defense. Second, positivism curbs judicial discretion. In some cases, judges are not satisfied with the outcome of a case that would be dictated by a narrow reading of existing laws. For example, some judges may not want to allow a landlord to evict an elderly and sick woman in the middle of winter, even if the law authorizes such action when rent is overdue. However, positiv- ism requires judges to decide cases in accor- dance with the law. Positivists believe that the integrity of the law is maintained through a neutral and objective judiciary that is not guided by subjective notions of equity. Positivism has been criticized for its harsh- ness. Some critics of positivism have argued that not every law enacted by a legislature should be accepted as legitimate and binding. For example, laws depriving African Americans and Native Americans of various rights have been passed by governments but later overturned as unjust or unconstitutional. Critics conclude that written law ceases to be legitimate when it offends principles of fairness, justice, and morality. The American colonists based their revolt against the tyranny of British law on this point. Positivism still influences U.S. JURISPRUDENCE. Many judges continue to evaluate the viability of legal claims by narrowly interpreting the law. If a right asserted by a litigant is not expressly recognized by a statute, precedent, or constitu- tional provision, many judges will deny recovery. Legal philosophers associated with legal positivism include JEREMY BENTHAM, JOHN AUSTIN, HANS KELSEN, H.L.A. Hart, and Joseph Raz. FURTHER READINGS Conklin, William E. 2001. The Invisible Origins of Legal Positivism: A Re-reading of a Tradition. Boston: Kluwer Academic. Neyhouse, Teresa J. 2002. Positivism in Criminological Thought: A Study in the History and Use of Ideas. New York: LFB Scholarly. Seebok, Anthony J. 2008. Legal Positivism in American Jurisprudence. New York: Cambridge University Press. Tuori, Kaarlo. 2002. Critical Legal Positivism. Burlington, Vt.: Ashgate. v POSNER, RICHARD ALLEN Author, legal scholar, and federal judge, Richard A. Posner is one of the most influential and controversial figures in contemporary American law. Posner rose to prominence first in acade- mia in the early 1970s, when he championed economic analysis of the law. With his faith in free-market capitalism and the goal of eco- nomic efficiency, he became one of the leaders of the so-called CHICAGO SCHOOL of antitrust theory, whose ideas left a broad mark on this area of law over the next decade and a half. In 1981 Posner was appointed to the U.S. Court of Appeals for the Seventh Circuit, and in 1993 he became its chief judge. In addition to issuing more than double the national average of judicial opinions annually, Posner has contin- ued to publish many articles and books that range across legal, social, and intellectual topics. Posner’s ascent began immediately after his graduation from Harvard Law School in 1962. After he graduated first in his class, he clerked for U.S. Supreme Court Justice WILLIAM J. BRENNAN JR., who reportedly regarded him as one of the few geniuses he had ever known. A career as a government attorney followed, with stints on the FEDERAL TRADE COMMISS ION (FTC); in the DEPARTMENT OF JUSTICE, working for solicitor general THURGOOD MARSHALL; and in President LYNDON JOHNSON’s administration. During this time, Posner also served on a highly visible AMERICAN BAR ASSOCIATION commission that evaluated the FTC, which established him as a strong supporter of free-market capitalism and a critic of federal regulation. In 1968 Posner left government service for academia. He taught at Stanford Law School for a year before leaving for the University of Chicago, where he would soon make his mark as a leading legal theorist. Economics served as the foundation for his approach; like adherents of the nineteenth-century Utilitarian move- ment in ENGLISH LAW, Posner believed firmly in the values of the free market and indivi- dual initiative. Many legal problems, he argued, were best approached using economic models GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 42 POSNER, RICHARD ALLEN of analysis, including those in areas that were not directly related to economics, such as criminal and CONSTITUTIONAL LAW. The approach also had implications for PUBLIC POLICY.In one widely cited example, Posner argued that the system of child ADOPTION would be improved if parental rights were sold, because it would reduce the imbalance between supply and demand. Although some critics accused Posner of reducing complexities to simple matters of dollars and cents, his 1972 book Economic Analy sis of Law became standard reading in many law schools over the next two decades. During the 1970s Posner became a leader of the Chicago School of antitrust theory. This was a group of scholar s, (mostly associated with the University of Chicago) who, like Posner, held antiregulatory and free-market views. The Chicago School sought to turn antitrust law— which is concerned with fair competition in business—on its head. At the heart of their arguments was the goal of economic efficiency. Posner and others urged the U.S. Supreme Court to abandon its critical view on so-called restraints of trade because business practices that had been thought to hurt competition actually helped it. Their theories had consider- able impact on the Court and U.S. cor porations for the next decade and a half. Meanwhile, Posner’s visibility grew. He published a prodigious amount of writing, established Lexecon, Inc.—a consulting firm specializing in economics and the law—and founded the Journal of Legal Studies. Then political fortune smiled on him: the administra- tion of President RONALD REAGAN saw Posner and other members of the Chicago School as its intellectual bedfellows, providing theoretical muscle to its antiregulatory politics. In 1981, Reagan nominated Posner to the U.S. Court of Appeals for the Seventh Circu it, in Chicago. The appointment provoked debate. In a decade and a half, Posner had accumulated a Richard A. Posner. COURTESY OF JUDGE POSNER Richard A. Posner 1939– ▼▼ ▼▼ 2000 1975 1950 ❖ 1939–45 World War II 1950–53 Korean War 1961–73 Vietnam War ◆ ◆ ◆ ◆ ◆ ◆ ◆ ◆ ◆ ◆ ◆ 1939 Born, New York City 1962–63 Clerked for Supreme Court Justice Brennan 1963–67 Served as government attorney for FTC and then under solicitor general Thurgood Marshall 1971 Founded the Journal of Legal Studies 1981– Served on U.S. Court of Appeals for the Seventh Circuit in Chicago 1972 Economic Analysis of Law published 1977 Established Lexecon, Inc. 1969–81 Taught at University of Chicago Law School 1991 Wrote en banc opinion in Dimeo v. Griffin, which upheld mandatory drug testing for jockeys, drivers, and others in horse racing 2003 Law, Pragmatism, and Democracy published 2001 Antitrust Law, 2nd edition, published 1999 Appointed mediator in Microsoft antitrust case (talks collapsed in 2000); The Problematics of Moral and Legal Theory published 1998 Became editor of American Law and Economics Review 1992 Sex and Reason published 1993–2000 Chief Judge of the Seventh Circuit 1995 Overcoming Law published 1996 The Federal Courts: Challenge and Reform published ◆ ◆ 2009 A Failure of Capitalism published 1962 Graduated first in class from Harvard Law School ◆ 2008 How Judges Think published GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION POSNER, RICHARD ALLEN 43 number of enemies in academia, nearly all of them on the political left. Although he consid- ered himself a classical liberal in the tradition of JOHN STUART MILL, his ideas struck opponents as crass, latter-day conservatism. Leading the attack was RONALD DWORKIN, the prominent liberal professor of JURISPRUDENCE at New York University Law School and Oxford University. Posner struck back, accusing his opponents in the professoriat of being afraid to take stands in their own work. However, he announced that he would avoid imposing his theoretical views from the bench. As an appellate judge, Posner has defied the labels that his critics have applied to him. Some of his opinions have a conservative bent: In Dimeo v. Griffin, 943 F.2d 679 (7th Cir. 1991), for example, Posner wrote for an en banc majority that upheld mandatory drug testing for jockeys and others in horse racing, favoring the state of Illinois’s interest in requiring thetesting. Someofhisother opinions have been more liberal: In Metzl v. Leininger, 57 F.3d 618 (7th Cir. 1995), Posner wrote an opinion that declared unconstitutional an Illinois law requiring schools to close onGood Friday,holding that the law violated the Establishment Clause of the FIRST AMENDMENT. Some of his opinions have employed his fascination for economics: In a 1986 case, American Hospital Supply Corp. v. Hospital Products Limited, 780 F.2d 589, he provided a mathematical formula for determining when PRELIMINARY INJUNCTIONS should be denied: if the harm to the plaintiff if the INJUNCTION is denied, multiplied by the probability that the plaintiff will win at trial, exceeds the harm to the DEFENDANT if the injunction is granted, multiplied by the probability that granting the injunction would be an error. Most notably, he has authored a much greater number of judicial opinions than have his peers on the federal bench. By 1994, he had averaged 77 opinions annually, as compared with the national average of 28. Since the 1980s Posner has exe rted a strong influence on legal thought. He has argued against popular conservative criticism that judges are too aggressive and activist, asserting that judges must be able to exercise interpreta- tive discretion. Besides being widely read and debated in academia, he found a popular audience with his 1992 book Sex and Reason, a criti cal analysis of sexual behavior. Posner is also a leading contributor to the LAW AND LITERATURE movement, impressing critics and supporters alike with his knowledge of juris- prudence and literary theory. Although Posner stepped down as chie f judge of the Seventh Circuit in 2000, he has remained visible. In 1999 U.S . District Judge Thomas Penfield Jackson named Posner to serve as a mediator in the Microsoft antitrust lawsuitthatthefederalgovernmenthad brought. Posner was outspoken about the U.S. Supreme Court’s decision in BUSH V. GORE,531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 38 8 (2000), where the U.S. Supreme Court held that the Florida Supreme Court could not constitu- tionally order a recount of thousands of votes for the 2000 presidential elections. In Breaking the Deadlock, Posner finds that the decision was abominable, but that the judgment was neces- sary to avoid a constitutional crisis. Along with Economic Analysis of the Law, several of Posner’s books are widely read among academics, including Economics of Justice, Law and Literature, and Antitrust Law. Posner has received numerous honorary degrees, including thedegreeofdoctoroflawsfromYaleUniversity, Georgetown University, the University of Penn- sylvania, Syracuse University, and Duquesne University. He also has received numerous awards and has served in a variety of capacities in several scholarly and professional organizations. As of August 2009, the prolific Posner was writing a blog with Gary Becker: http://www .becker-posner-blog.com/index.html. That month he posted a timely piece about the state of healthcare reform. His latest book was A Failure of Capitalism: The Crisis of ’08 and the Descent into Depression. Posner is married to the former Charlene Horn. They have two sons and three grand- children. FURTHER READINGS Margolick, David M. 1981. “Ally and Foe Admire Bench Nominee.” New York Times (November 20). Posner, Richard A. 2009. A Failure of Capitalism: The Crisis of ’08 and the Descent into Depression. Cambridge, Massachusetts: Harvard Univ. Press. ———. 2008. How Judges Think. Cambridge, Massachu- setts: Harvard Univ. Press. ———. 2000. The Collected Essays of Richard A. Posner. Northampton, Mass.: Edward Elgar. ———. 1987. “What Am I? A Potted Plant?” The New Republic (September 28). ———. 1972. Economic Analysis of Law. Boston: Little, Brown. [A] PRAGMATIC APPROACH [TO LAW IS ONE ] THAT IS PRACTICAL AND INSTRUMENTAL RATHER THAN ESSENTIALIST — INTERESTED IN WHAT WORKS AND WHAT IS USEFUL RATHER THAN IN WHAT ‘REALLY’ IS. I T IS THEREFORE FORWARD -LOOKING, VALUING CONTINUITY WITH THE PAST ONLY SO FAR AS SUCH CONTINUITY CAN HELP US COPE WITH PROBLEMS OF THE PRESENT AND THE FUTURE . —RICHARD A. POSNER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 44 POSNER, RICHARD ALLEN Rosen, Jeffrey. 1995. “Overcoming Law” (book review). Yale Law Journal 105. CROSS REFERENCES Jurisprudence; Utilitarianism. POSSE COMITATUS [Latin, Powe r of the county.] Referred at common law to all males over the age of 15 on whom a sheriff could call for assistance in preven ting any type of civil disorder. The notion of a posse comitatus has its roots in ancient ENGLISH LAW, growing out of a citizen’s traditional duty t o raise a “hue and cry” whenever a serious crime occurred in a village, thus rousing the fellow villagers to assist the sheriff in pursuing the CULPRIT. By the 17th century, trained MILITIA bands were expected to perform the duty of assisting the sheriff in such tasks, but all males age 15 and older still had the duty to serve on the posse comitatus. In the United States, the posse comitatus was an important institution on the western frontier, where it became known as the posse. At various times, vigilante committees, often acting without legal standing, organized posses to capture wrongdoers. Such posses sharply warned first- time cattle rustlers, for instanc e, and usually hanged or shot second-time offenders. In 1876, a 400-man posse killed one member of the infamous Jesse James gang and captured two others. In 1878 the use of a posse comitatus was limited by the passage of the Posse Comitatus Act of 1878. Passed in response to the use of federal troops to enforce RECONSTRUCTION poli- cies in the former Confederate states, this act prohibited the use of the U.S. Army to enforce laws unless the Constitution or an act of Congress explicitly authorized such use. This act was amended five times in the 1980s, largely to allow for the use of military resources to combat trafficking in illicit narcotics. Though rarely used, authorities occasionally employ posse comitatus. In June 1977, for example, the Aspen, Colorado, sheriff called out the posse comitatus—ordinary citizens with their own weapons—to hunt for escaped mass murderer Theodore (“Ted”) Bundy. Many states have modern posse comitatus statutes; one typical example is the Kentucky statute that gives any sheriff the power to “command and take with him the power of the county or a part thereof, to aid him in the execution of the duties of his office ” (Ky. Rev. Stat. Ann. § 70.060 [Baldwin 1996]). “Posse Comitatus” is also the name taken by a right-wing, antitax extremist group founded in 1969 by Henry L. Beach, a retired dry cleaner and one-time member of the Silver Shirts, a Nazi-inspired organization that was established in the United States after ADOLF HITLER rose to power in Germany. The group operated on the belief that the true intent of the founders of the United States was to establish a Christian republic where the individual was sovereign. Members of the group were united by the belief that the federal government was illegitimate and being operated by Jewish interests through the INTERNAL REVENUE SERVICE, the federal courts, and the Federal Reserve. The Posse Comitatus received widespread media attention in 1983 when a leader of the grou p, Gordon Kahl, was involved in a violent standoff with North Dakota law enforcement officers. Convicted for failure to pay taxes and then for violating the terms of his PROBATION, Kahl shot and killed three officers and wounded three others before being shot and killed himself. FURTHER READINGS Cornell, Saul. 2006. A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America. New York: Oxford University Press. Hasday, Jill Elaine. 1996. “Civil War as Paradigm: Reestablish- ing the Rule of Law at the End of the Cold War.” Kansas Journal of Law and Public Policy 5. Malcolm, Joyce Lee. 1994. To Keep and Bear Arms. Cambridge: Harvard Univ. Press. CROSS REFERENCES Militia; Second Amendment. POSSESSION The ownership, control, or occupancy of a thing, most frequently land or personal property, by a person. The U.S. SUPREME COURT has written that “there is no word more ambiguous in its meaning than possession” (National Safe Deposit Co. v. Stead, 232 U.S. 58, 34 S. Ct. 209, 58 L. Ed. 504 [1914]). Depending on how and when it is used, the term possession has a variety of possible meanings. As a result, possession, or lack of possession, is often the subject of controversy in civil cases involving real and PERSONAL PROPERTY and in criminal cases involving drugs and weapons—for example, whether a renter is GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION POSSESSION 45 entitled to possession of an apartment or whether a criminal suspect is in possession of stolen property. The idea of possession is as old as the related concepts of private property and ownership. Our modern possession laws originated in the ancient Roman doctrines of possessio. English NATURAL LAW inh erited most of the Roman possession ideas, and later the British brought their law of possession to the Ame rican colonies. Following the WAR OF INDEPENDENCE, state and federal courts continued to use and expand upon the historical notions of possession. Possession versus Ownership Although the two terms are often confused, possession is not the same as ownership. No legal rule states that “possession is nine-tenths of the law,” but this phrase is often used to suggest that someone who possesses an object is most likely its owner. Likewise, people often speak of the things they own, such as clothes and dishes, as their possessions. However, the owner of an object may not always possess the object. For example, an owner of a car could lend it to someone else to drive. That driver would then possess the car. However, the owner does not give up ownership simply by lend ing the car to someone else. The myriad distinctions betw een possession and ownership, and the many nuances of possession, are complicated even for attorneys and judges. To avoid confusion over exactly what is meant by possession, the word is frequently modified by adding a term describing the type of possession. For example, possession may be actual, adverse, conscious, constructive, exclusive, illegal, joint, legal, physical, sole, superficial, or any one of several other types. These modifiers are often combined, as in “joint constructive possession.” All of these different kinds of possession, however, originate from what the law calls “actual possession.” Actual Possession “Actual possession is what most of us think of as possession—that is, having physical CUSTODY or control of an object” (United States v. Nenadich, 689 F.Supp. 285 [S.D.N.Y. 1988]). Actual possession, also sometimes called posses- sion in fact, is used to describe immediate physical contact. For instance, a person wearing a watch has actual possession of the watch. Likewise, if you have your wallet in your jacket pocket, you have actual possession of your wallet. This type of possession, however, is by necessity very limited. Frequently, a set of facts clearly indicate that an individual has possession of an object but that he or she has no physical contact with it. To properly address these situations, courts have broadened the scope of possession beyond actual possession. Constructive Possession Constructive possession is a legal theory used to extend possession to situations where a person has no hands-on custody of an object. Most courts say that constructive possession, also sometimes called “possession in law,” exists where a person has knowledge of an object plus the ability to control the obj ect, even if the person has no physical contact with it (United States v. Derose, 74 F . 3d 1177 [11th Cir. 1996]). For example, peop le often keep important papers and other valuable items in a bank safe deposit box. Although they do not have actual physical custody of these items, they do have knowledge of the items and the ability to exercise control over them. Thus, u nder the doctrine of c onstruc- tive possession, they are still considered to be in possession of the c ontents of their safe deposit Under the doctrine of constructive possession, those who keep valuable items in a bank safety deposit box are considered in possession of the contents of the box even though they do not have actual physical custody of the items. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 46 POSSESSION box. Constructive possession is frequently used in cases in volving criminal po ssession. At the federal level, the term constructive possession has specific applications. For in- stance, under the Comprehensive Drug Abuse Prevention and Control Act of 1979, 21 U.S.C. § 841, a person may be convicted of possession of drugs with intent to distribute, when the person “knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others.” In this context, “constructive posses- sion” of a controlled subst ance exists where a DEFENDANT does not have physical possession of the controlled substance but (1) knows it is within his presence, (2) has the ability to maintain control over it, and (3) knows of the illicit nature of the controlled substance. Criminal Possession Both federal and state statutes make possession of many dangerous or undesirable items crimi- nal. For example, the federal statute 26 U.S.C.A. § 5861 (1996) prohibits possession of certain firearms and other weapons. Likewise, the possession of other items considered harmful to the public, such as narcotics, BURGLARY tools, and stolen property, is also made criminal under various laws. Criminal possession, espe- cially of drugs, has been a major source of controversy. Making possession a crime allows for arrests and convictions without proving the use or sale of a prohibited item. Historically, actual possession was required for a criminal possession conviction. Beginning in the 1920s, however, courts began expanding criminal possession to include constructive possession. The federal PROHIBITION of intoxicat- ing liquors spawned several cases involving criminal possession. In one of the first criminal cases to use constructive possession, the court found a defendant guilty of possessing illegal liquor in trunks in the actual possession of another person (People v. Vander Heide, 211 Mich. 1, 178 N.W. 78 [1920]). Subsequent case s, especially narcotics cases, have continued to expand the law of criminal possession. Possession and Intent In civil cases, intent is rarely a part of possession. However, in criminal cases, posses- sion usually requires conscious possession. In other words, the person must be conscious of the fact that the item is illegal and that he or she possesses it. A person who was in possession of illegal drugs may avoid conviction if he or she believed the drugs were legal. Generally, to be guilty of criminal possession, a person must either know the item is illegal when it is received or must keep possession of the object after learning it is illegal. FURTHER READINGS Lafave, Wayne R., and Austin W. Scott, Jr. 2003. Substantive Criminal Law. 2d ed. St. Paul, Minn.: West. Singer, George H. 1992. “Constructive Possession of Controlled Substances: A North Dakota Look at a Nationwide Problem.” North Dakota Law Review 68. Snyder, David V. 1992. “Symposium: Relationships among Roman Law, Common Law, and Modern Civil Law: Possession: A Brief for Louisiana’s Rights of Succession to the Legacy of Roman Law.” Tulane Law Review 66. CROSS REFERENCES Adverse Possession; Criminal Law; Drugs and Narcotics. POSSESSORY ACTION A proceeding instituted to obtain or recover the actual possession of property, as distinguished from a proceeding that merely seeks to establish the plaintiff's title or ownership of property. In ADMIRALTY LAW, a possessory action is one that is brought to recover the possession of a vessel that is had under a claim of title. For example, a n e viction proceeding is a possessory action to regain control of the property from a tenant. Under old ENGLISH LAW, a possessory action was used to regain possession of the freehold, of which the plaintiff or the plaintiff’s ancestors had been wrongfully deprived by the present tenant or possessor of the property. POSSESSORY WARRANT A rare statutory remedy for the recovery of PERSONAL PROPERTY that has been taken by FRAUD, violence, enticement, or seduction, or that has disappeared and is believed to be in the de tention and control of the party complained against. POST MORTEM [Latin, After death.] Pertaining to matters occurring after death. A term generally applied to an autopsy or examination of a corpse in order to ascertain the cause of death or to the inquisition for that purpose by the CORONER. A few specific applications include post mortem rights as related to the duration of the right of publicity. The survival limitations of the right of publicity have long been debated on GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION POST MORTEM 47 . Discrimination. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION PORNOGRAPHY 39 the same could be said of other speech, including expressions of racial bigotry. Yet, these kinds of expression are. published ◆ ◆ 2009 A Failure of Capitalism published 1962 Graduated first in class from Harvard Law School ◆ 20 08 How Judges Think published GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION POSNER, RICHARD. WITH PROBLEMS OF THE PRESENT AND THE FUTURE . —RICHARD A. POSNER GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 44 POSNER, RICHARD ALLEN Rosen, Jeffrey. 1995. “Overcoming Law (book review). Yale Law