Cardozo and Posner on Contracts and Torts

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2 Responses

  1. A.J. Sutter says:

    Could you unpack a bit just what it is on which Posner has enormous influence?

    Casebooks are put together by law profs. It’s not surprising that Law & Economics and Posner have had an enormous influence on the academy. But what has been Posner’s influence, and the influence of L&E generally, on the judiciary at large? How often are cases decided these days using L&E analysis?

  2. Lawrence Cunningham says:

    A.J.’s questions are nice. They are part of the motivation for the inquiries. If the legal academy is influenced by a judge or movement, what onward influence occurs among the bar and bench? What do casebook editors and law teachers transmit to their students that those people take away into practice and adjudication? My own reflections lead me to infer that professorial decisions are consequential so that, if a judge, an idea or movement exerts enormous influence on the legal academy, she, he or it likely exerts such influence more broadly.

    Notably, too, Posner’s judicial opinions do not always coincide with pure L&E models, although they show a characteristic style more akin to that than to traditional doctrinalism. Many also tend to be far more widely cited by judges than one might expect (often by state judges, including many within the 7th Circuit). Detailed investigation of exactly what this means, in terms of influence or otherwise, seems worthwhile. [A friend quipped that Posner is a better judge than scholar.] The articles begin a bit of that, recognizing that the general field of critical judicial studies or judicial decision making could expand such inquiries considerably.