MacGregor v. Rutberg, No. 06-2829 (7th Cir., Feb. 27, 2007).
"[Judge] Posner's analysis of the law is of a kind with his other empirical studies. To him, all aspects of life are on a balance sheet.
"He has argued that a higher proportion of black women than white women are fat because the supply of eligible black men is limited, thus black women find the likelihood of profiting from attaining an elegant figure too small to compensate for the costs of dieting.
"The right wing in legal thinking supports the right wing in the economic area. Political and economic argument has been transformed into constitutional argument…."
—Martin Garbus, The Next 25 Years, New York: Seven Stories Press, 2007, p. 151
What the appellate court in Chicago did today starts like this: Two brain surgeons walk into a courtroom. One is being sued for malpractice. The other is an expert witness testifying against her. Dr. One wins, sues Dr. Two for defamation for his testimony. The law says Dr. Two can claim an absolute privilege "for statements in testimony or pleadings in a judicial proceeding" (opinion at 2). Dr. One urges the court to make new law, finding a exception to the privilege, so that expert witnesses (as opposed to lay witnesses) could be sued.
Judge Posner's answer: The main reason not to do this is that it would just cost too darn much.
Outcome: Dr. One can't sue Dr. Two.
Here's why you should care.
It ain't about doctors. It's about whether you should be allowed into court when you feel you have to sue somebody: A corporation, the police who beat you up, whoever.
The stripped-down logic is this: Where possible, prevent litigation. Litigation is expensive. Expensive is bad. Expensive is always bad.
"The Posnerian analysis supports the New Right in areas besides pure economics. His is a worldview that admittedly 'manifests a conservative political bias.' In his scheme, capital punishment has a deterrent effect…." (Garbus at 150)
Nevermind the doctors. Here's the truth. It might just be too expensive to let you have your day in court.

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