Richard Posner uses cat analogy in a legal decision

Richard Posner is not only a very distinguished federal judge, but also my colleague: he’s a professor at the University of Chicago Law School, author of many books, and the most cited legal scholar of the 20th century. He also loves cats.  I emailed him five years ago asking about his well known ailurophilia, and he obliged us by sending a picture of his beloved cat Pixie and a paragraph about her.

Posner retired last fall at age 78, but this story from the Chicago Tribune came out a few months before that.  It deals with a case in which a plaintiff brought suit against Allergan, a company that makes eyedrops—because the drops were too big! The judges rules against the plaintiff; you can see the entire ruling by clicking on the screenshot below.

Case of Eike vs. Allergan (pdf)

If you read the decision, you’ll see that Posner, who wrote it, made an elaborate analogy to cats when turning down the plaintiffs. As the Tribune reported:

“And suppose the buyers do as told, buying what they are told to buy from pet stores, but it turns out that the cats have large appetites, the cat food is quite expensive, and the fountains are expensive and not wholly reliable. The breeders had made no misrepresentations, concealed no information, answered all questions of prospective buyers truthfully. Nevertheless many of the buyers are dissatisfied. They think — maybe correctly — that the cat food is needlessly expensive and the fountain a fragile luxury.

“Yet would anyone think they could successfully sue the breeders? For what? The breeders had made no misrepresentations. Had a prospective buyer asked one of the breeders what the annual cost of maintaining the cat would be, the breeder would, let’s assume, have given him a realistic estimate. There would be disappointment in the example given, but no cause of action.”

In other words, the eye drop plaintiffs are out of luck. And Posner is really, really into cats.

Posner, who last year used a less elaborate “cats v. dogs” metaphor in a ruling on Uber’s fight with the taxi trade, did not return calls from Inc. inquiring after the health of his kitty. But in 2013 he told the Daily Beast that he had “a big crush” on Pixie. “She likes to give us nuzzles and be with us. Her little face falls if either of us leaves the house,” he said.

If you want Posner’s summary of the case itself from the decision, here it is.

The argument is only that the price of the eye drops is excessive because a smaller drop, costing less to produce and (especially) to package, could be sold at a lower price yet still cover the producers’ costs, and therefore the only benefit of the larger drop is to the producers’ profits, which is why, the class argues, the producers are not motivated to make the change. This assumes that profits would decline if the defendants switched to selling the smaller, cheaper-to-produce eye drops. But that’s far from certain; lower prices might result in greater sales and as a result higher rather than lower profits.

The class further alleges that the large eye drops have a higher risk of side effects—but does not explain what the side effects are—and are more likely to be used up faster. Yet there is no claim that members of the class have experienced side effects from the large drops, or have been harmed because they ran out of them early (on the theory that the larger the drops the fewer there are in each bottle). Unsurprisingly, therefore, the only damages sought are for the “pocketbook” injury of paying what the class contends to be an unnecessarily high price for the defendants’ eye drops because of the size of those drops.

The Tribune also noted Posner’s fondness for Pixie:

“She’s a real sweetie. It’s one of the reasons I work at home a lot now.”

Here’s Pixie and what Posner wrote for this site:

She is a beauty, as you can see; also very intelligent; but above all affectionate, which is rare in my experience of cats. My wife and I have had cats (just one at a time) since before we were married, which means more than 51 years ago, and Pixie is the first one who actually likes me (gives me frequent nuzzles, follows me around, lies on my computer keyboard, causing chaos). I strongly recommend the breed–Maine Coon–and also buying a cat from a breeder, because breeders are very concerned with raising good-natured animals, as otherwise they don’t have a chance

h/t: Greg Mayer

35 Comments

  1. Posted January 29, 2018 at 1:54 pm | Permalink

    Posner is a great jurist, but I can’t say I follow his reasoning in this case. In the cat analogy, the breeders are just providing advice or information to their customers. In the eye drop case, the producers are packaging their product in a way that obliges their customers to use more product than they need.

    • Paul S
      Posted January 29, 2018 at 2:07 pm | Permalink

      That’s not how I read it. The cat analogy doesn’t assume that you can buy different food or use a bowl instead of a fountain.

      ….had told them that as responsible cat owners they would have to feed the cats kibbles

      • Posted January 29, 2018 at 3:35 pm | Permalink

        It doesn’t appear that the eye drop producers had made any claims about the size of the drops or that the drop was sized so as to save the consumer the most money. If they size the drops to make more money, that is their right. Of course, it is also the right of the consumer to buy the less-expensive competing product.

        They might have a stronger moral case if the drops in question were only available from one producer, though my guess is that this wouldn’t have changed the verdict.

    • Taz
      Posted January 29, 2018 at 2:25 pm | Permalink

      That’s what I thought at first, but presumably the eye-drop users are also free to switch to a different brand and are suing only for the product they’ve already purchased. That would make the analogy more apt.

      • Paul S
        Posted January 29, 2018 at 2:31 pm | Permalink

        They could also use a smaller eye dropper.

        • E.A. Blair
          Posted January 29, 2018 at 5:44 pm | Permalink

          That was my first thought.

    • glen1davidson
      Posted January 29, 2018 at 2:35 pm | Permalink

      That’s what I was thinking, too. I suppose one actually could use a dropper that releases smaller drops, but seriously, that’s not a very great option (you may not have one, if you do it might have something not easy to clean out, etc.).

      That said, who really knows why they went for “too big” drops? Maybe it was to prevent liability problems, so that people doing something wrong might end up with too little if the drops were smaller. And how much does the medicine cost, anyhow? Often the cost to them of the medicine is minuscule, with everything else (including marketing and liability) costing much more.

      Likely they hashed real costs out in court, but, from what little we know, I can’t say that the manufacturer did anything inappropriate. But that doesn’t change the fact that while you can easily leave out the extras for the cat you bought, it’s not so easy to use smaller doses of the medicine even if that’s all you want and need.

      Glen Davidson

      • Heather Hastie
        Posted January 29, 2018 at 5:28 pm | Permalink

        Move to New Zealand. Your eye drops will cost you nothing if you’re poor, over 64, or under 15, and $5 for everyone else.

        Or move anywhere else in the Western world and you will have a similar experience to that of NZers.

        Surprise, surprise: in all those countries there are less lawyers per capita too.

        Having said that, I think Posner is great. It seems to me he really wanted to get a cat into a judgment where he regarded the case as an overreach or (word on the tip of my tongue but I can’t grasp it). I think it was partly making a point about what a stupid lawsuit it was in the first place.

  2. Ken Kukec
    Posted January 29, 2018 at 2:00 pm | Permalink

    I’ve been known to torture an analogy myself, but Hizzoner takes the cake with this one. He’ll be hearing from the international metaphorical-rights commission at The Hague, no doubt.

  3. Randall Schenck
    Posted January 29, 2018 at 2:05 pm | Permalink

    It is no wonder that I did not go into the law profession. I do have a couple of problems with the Judge regarding the cat metaphor. The kibble would be for the day and evening and the Fancy Feast in the morning. Everyone knows you feed the wet stuff in the morning. Also, recommends buying a cat from a breeder…really?

    • Paul S
      Posted January 29, 2018 at 2:13 pm | Permalink

      Must disagree, here it’s kibble all day and wet food at 4:00pm. Sure, there are many rescue cats that need homes and that’s probably the best route, but my first kittehs some 50 years ago were Siamese and I’ve been hooked since.

      • Randall Schenck
        Posted January 29, 2018 at 4:04 pm | Permalink

        Well, our first cat was Siamese and she made it 17 years. Can’t remember the feeding, we got that cat in 1976, but I think she was mostly can food. All of our cats since have been recuse.

        • glen1davidson
          Posted January 29, 2018 at 4:20 pm | Permalink

          It’s probably best to recuse cats.

          Oh come on, I just thought it was an interesting typo in reference to a court case.

          Glen Davidson

          • Paul S
            Posted January 29, 2018 at 7:43 pm | Permalink

            Must have read this four times before it hit me. 🙂

  4. Posted January 29, 2018 at 2:14 pm | Permalink

    Posner indeed has a reputation as a brilliant legal scholar, but I was quite unimpressed with his opinions regarding human sex trafficking and Backpage. In the documentary “I Am Jane Doe”, Posner’s questions and logic come across as someone blinkered to understanding the direct and active roll that Backpage had in trafficking. However, that particular case was about a very narrow portion of the legal battles, ie. Cook County Sheriff Tom Dart’s actions. Thankfully, Backpage has shut down, and Congress is looking at the the legal loophole of Section 230 of the CDA that Backpage used successfully for years in their defense.

  5. Posted January 29, 2018 at 2:26 pm | Permalink

    Seems to me the company could simply provideadropper with asmaller bore on the nozzle.And ask owners of larger pets to use two drops. It should not have to come to a lawsuit. Goodness knows what it costs to manufacture, buy and fill the bottles etc.Or how long the product lasts etc or what it costs. But even at $20 a month it can impact some people’s pocketbooks. So, I don’t quite agree with the judge’s decision.
    BTW vet bills are becoming outrageously high.

    • Paul S
      Posted January 29, 2018 at 2:42 pm | Permalink

      I think the drops were for people.

  6. Posted January 29, 2018 at 2:51 pm | Permalink

    I protest!
    I suspect the breeders have shares in the products they recommend including the defective fountain.
    Rubbing of hands with a Fagin like sneer.
    Back to the case…
    the volume in each drop dispensed is large because the product isn’t that great and needs the large drop to receive the required stated purpose.
    The wool over…?

    I don’t have a cat but true love is hard to find.

  7. Posted January 29, 2018 at 3:02 pm | Permalink

    Now I feel privileged. Our cats love to lap up their water out of their bowls. Each has his own, of course.

    • Paul S
      Posted January 29, 2018 at 3:16 pm | Permalink

      Our cats refuse to drink from a bowl. They have a 1997 Chicago Bulls 16oz plastic mug on the corner of the coffee table. We’ve had odd looks from first time visitors.

      It’s amazing how far they can get their heads into the mug without tipping it over.

      • Diane G.
        Posted January 31, 2018 at 12:04 am | Permalink

        That’s a riot! 😀

  8. Posted January 29, 2018 at 3:41 pm | Permalink

    I bought a cat fountain that was well-reviewed. It was awful. As soon as the cats put their front paws on it, the fountain fell into pieces. Now their favorite water dispenser is my wife’s Water Pik tank.

    I don’t believe the cats require a fountain because of gravity. Their tongues work really well. Instead, the fountains make the water move which convinces the cats that it is fresh. Proving that cats can self-manipulate too, one of our cats rocks the water tank with his paw, causing ripples, before he deems it safe to take a drink.

    • Peter N
      Posted January 29, 2018 at 4:15 pm | Permalink

      Dear, departed Gus made it quite clear to me that water tasted much better when it was aerated. So I would always pour it from a height (from the Brita filter pitcher of course, never unfiltered tap water!) into a little dish, making sure he could see and hear me doing it, so he could be sure. Then, for some reason, it had to be served in the upstairs bedroom — he would sniff at it in the kitchen but not drink, but he would happily trot after me as I climbed the stairs. This ritual was repeated many times a day.

      I think at one point I suggested to Jerry that he solicit “weird feline food and drink rituals” stories from his readers, with photos of course, but that idea didn’t go anywhere.

      • Posted January 29, 2018 at 5:07 pm | Permalink

        You guys are lucky. For almost ten years my old tom refused to drink out of anything except the toilet. No dish, no matter how clean or aerated or whatever would suffice.

        Then one summer he decided to rotate his daily sleeping spot into the bathroom (he picks odd places throughout the apartment for his naps, sticks with them for a week or two, then moves on to another). While the bathroom was his nape room, my teenaged sons and I (just the three of us) had to go with a witness right at hand.

        At first I didn’t notice that he was watching but after a few days it was impossible to ignore; he was staring at us every time we went. At some point it dawned on him – we were peeing into his water dish! He’d look up at us, then down at the toilet, up, down, up down. Couldn’t believe it, I guess. For days he’d follow us in and check; “yep, they’re doing it again…in MY WATER DISH!”.

        Now I swear I’m not making this up….ever since that epiphany he now drinks solely out of the fish tank. The poor fish had it rough at first, but they’re used to him now.

        • Heather Hastie
          Posted January 29, 2018 at 5:34 pm | Permalink

          Great stories guys! Most enjoyable. 🙂

        • Posted January 30, 2018 at 4:57 am | Permalink

          Brilliant story 😀

    • E.A. Blair
      Posted January 29, 2018 at 5:51 pm | Permalink

      I have a cat fountain that has lasted for over ten years. I did have to replace the pump rotor, but that’s because I was clumsy when cleaning it. I originally bought it when I was going through a series of operations on my left arm, and I needed something that did not need daily tending. When it’s cleaned and filled, the fountain can go for a week before it needs to be tended, and that’s a real benefit for someone who had one arm in a cast off and on for four years.

  9. grasshopper
    Posted January 29, 2018 at 5:54 pm | Permalink

    I assume that X number of drops equals a “dose”. The dose can be delivered in fewer drops, or a greater number of drops, depending upon the dilution factor. I suspect that when you buy eyedrops you get a certain number of doses, so that is what you pay for, not the size.

  10. Kaddath
    Posted January 29, 2018 at 7:11 pm | Permalink

    What baffles me (as a non-american) is that this lawsuit was allowed to proceed.

    • Rasmo Carenna
      Posted January 30, 2018 at 2:23 am | Permalink

      Indeed. I was going to say the same thing. As a non-american, I am often surprised when I read about American lawsuits that in my legal culture would be considered frivolous and dismissed right away.

  11. Josh Lincoln
    Posted January 30, 2018 at 6:43 am | Permalink

    Unfortunately Posner’s drunk the Kool Aid on recommending procuring a cat from a breeder. For many reasons which I’ll not dwell on here, I think that is a disservice to your readers. The logic behind “because my purebred cat is great” so all just like it are equally likely to be great strikes me as being a bit prejudiced, no? But then again perhaps someone would accuse me of being prejudiced towards recommending domestic shorthaired cats from the pound.
    However, I am sure that he is a great and intelligent judge. Professor etc.

    • Posted January 30, 2018 at 7:21 am | Permalink

      Sorry, but that is not Kool Aid and there is some advantage to getting a cat from a breeder (I, for one, want a Bengal, and my friend Anthony Hutcherson breeds them—and gets them genetically tested—to eliminate disease genes and to instill a sweet temperament. Yes, I know there are cats from pounds or feral cats (I’ve had half a dozen), but sometimes one wants a special cat.

      As for my doing a disservice to my readers, well, that’s not very polite. I just reproduced what Posner said.

      I have to say that comments like this, on a post meant to be fun, take all the joy out of my posting. Someone is always around to be critical of what I’ve written, even on a post like this.

      • Josh Lincoln
        Posted January 30, 2018 at 2:28 pm | Permalink

        I did not intend to take the fun out of it in any way and certainly apologize if I came off as doing anything that contributed to that. I do realize that you are keen on bengals and we might not see eye to eye on purebred cats, but hope that we can always banter good naturedly over it. Perhaps if we had been face to face over a beer I would not have ruffled feathers and you would have seen a good natured jab at breeders as what it was meant to be.
        On another note responding to the reader two notes down, over the last thirty years of practicing veterinary medicine, I have seen an equal number of upper respiratory infections and internal as well as external parasite infections from breeder provided pets as rescue pets.
        All the best,
        Josh

    • glen1davidson
      Posted January 30, 2018 at 10:15 am | Permalink

      The pound isn’t likely to tell you that you have to feed the cat Fancy Feast, and recommend the rest.

      We’re not all sure that it’s a good analogy, but at least he was going for an analogy to the eye drops. Rescue cats wouldn’t have gotten him as far as he managed to go.

      Glen Davidson

    • Posted January 30, 2018 at 10:20 am | Permalink

      It does matter where you get your cat. We got two rescue cats (at least that’s what we were told) from a local stable and children’s zoo. Both had worms and one had an infection. Luckily they are both now healthy and happy.


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