Cardozo and Posner on Contracts and Torts
A decade ago, I wrote an article inquiring into the comparative contributions to Contract law of Judges Cardozo and Posner. This was inspired by the former’s dominance of Contracts casebooks and the latter’s ascendency. Ranking judges by the frequency with which their opinions were reproduced in Contracts casebooks, Cardozo was firmly number one, followed by Traynor, with Posner a close third, beating out Hand, Holmes, Swan, Peters and other luminaries.
This affirmed Judge Posner’s enormous influence. It also suggested a small bit of formal evidence of a shift from legal analysis characterized by thickly textured doctrinalism to one consciously focused on instrumental and pragmatic method (although Cardozo showed hints of a proto-pragmatist). Notably, Cardozo’s and Posner’s reproduction frequency shared a couple of similarities. Each had an aggregate of 13 opinions reproduced in the casebooks and 6 of each of these had appeared in just 1 casebook apiece. On the other hand, Cardozo had 2 opinions that were clearly canonical, being reproduced in nearly every casebook, while Posner’s most frequently reproduced opinion appeared in only 2/3 of the books.
This summer, I’m beginning a like inquiry on comparative judicial contributions to Torts. Some similarities and some differences from the Contracts study appear in the preliminary data (being ably developed by my research assistants, Matt Albanese, Dana Parsons and Paul Stepnowsky).
Similarities include the judicial roster. Cardozo is again firmly in the lead, now with Posner second by a good margin. These are followed by Mock, Traynor and Hand. (For now, we’re setting aside Supreme Court justices whose opinions on constitutional torts (privacy, defamation) play starring roles in some torts casebooks.)
Differences appear in other data points. Cardozo has an aggregate of 10 opinions reproduced in the Torts casebooks whereas Posner has an aggregate of 25 opinions reproduced. All but 1 of Cardozo’s appearing opinions appear in multiple books and most are reproduced in more than a third of the casebooks. In contrast, more than half of Posner’s appearing opinions appear in only 1 book and only 2 appear in more than half the books.
According to the collective Torts casebook editors, there is clearly a Cardozo canon; no consensus appears concerning any Posner canon. These editors know that including Cardozo’s contributions is vital and overwhelmingly agree on which of his contributions are most vital; editors also appear to believe that including Posner’s contributions is vital, but show very limited consensus on which those should be.
Other preliminary discoveries of interest are that the roster of leading Torts judges, measured by casebook impact, is dominated by judges from the state courts of California and New York (along with federal judges sitting in New York, especially Hand). The Contracts results also featured many California and New York state judges but also included judges from Connecticut and Massachusetts. Since Posner is a federal judge sitting in Chicago, these points underscore how significant Posner’s emerging dominance in the Contracts and Torts casebooks is. A goal of this new article is to continue to look into why this is so and what it may mean.