Cardozo and Posner on Contracts and Torts
posted by Lawrence Cunningham
Several recent inquiries (for example, here and here) investigate aspects of judicial decision making, including empirical studies of influence, reputation and productivity.
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.
July 1, 2008 at 10:50 am
Posted in: Contract Law & Beyond, Economic Analysis of Law, Empirical Analysis of Law, History of Law, Jurisprudence, Law School (Teaching), Legal Theory, Tort Law
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Responses (2)
A.J. Sutter - July 1, 2008 at 10:07 pm
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?
Lawrence Cunningham - July 2, 2008 at 7:59 am
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.
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