Poll on Famous Torts Cases and Judges
posted by Lawrence Cunningham
Would readers take a quick poll on famous torts cases and judges stemming from my work “Cardozo and Posner: A Study in Torts” (noted here and here)? Those judges are the first and second most consequential on tort law measured by opinion frequency in 20 current Torts casebooks. Both are legendary judges with particular recognition in the law of torts.
Cardozo’s torts opinions are canonical: 10 appear in the books, 7 in at least 1/4 of them, and all but 1 appear in at least 3 books. Posner’s opinions enjoy more sporadic interest: 25 opinions appear in the books, only 2 in at least 1/4 of them, and 20 appear in only 1 or 2 books.
My analysis inter-acts these opinions, in their practical, theoretical and pedagogical contexts, to hypothesize explanations for this differential status. A simplified version of the thesis: Cardozo’s traditional doctrinalism, supplemented using old-fashioned rhetoric, wins out over Posner’s contemporary economic supplementation of legal reasoning. 
Out of curiosity, I list below the 10 Cardozo opinions and a sampling of Posner opinions and wonder if readers would comment whether they recognize the opinions and, if so, what stands out about them.
A. BENJAMIN CARDOZO
1. Palsgraf v. Long Island R.R.
2. Martin v. Herzog
3. MacPherson v. Buick Motor
4. Pokora v. Wabash Railway
5. Murphy v. Steeplechase Amusement
6. H.R. Moch v. Rensselaer Water Co.
7. Ultramares v. Touche, Niven
8. Adams v. Bullock
9. Wagner v. Internation Railway
10. Glanzer v. Shepherd
B. RICHARD POSNER
1. Indiana Harbor Belt R.R. v. American Cyanamid
2. Haynes v. Alfred Knopf
3. Desnick v. ABC
4. Kemezy v. Peters
5. Wassell v. Adams
6. McCarty v. Pheasant Run
7. Davis v. Conrail
8. Greycas v. Proud
9. Orthmann v. Apple River Campground
10. Stoleson v. United States
NB1: I don’t propose to use resulting information in the article but responses may influence analysis.
NB2: it may be helpful if commenters say whether they are current/recent law students, lawyers, law profs, or non-law types.
Thanks to those willing to comment!
May 20, 2009 at 7:44 am
Posted in: Jurisprudence, Tort Law
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Responses (4)
Tim - May 20, 2009 at 10:21 am
I’m a rising 3L….prob about 20 months removed from torts.
I can’t tell you what they are but I recognize Palsgraf, Herzog and Wabash. I only remember the substance of Palsgraf. The others, the names ring a bell.
I sadly don’t recognize Posner’s opinions.
I will add that I’m terrible with case names.
Robert - May 20, 2009 at 11:40 am
I’m a rising 2L, who took Torts in the Fall.
Of the Cardozo opinions, I remember Palsgraf, Martin, MacPherson v. Buick Motor, Murphy, Adams, and Wagner from my Torts class. I read Ultramares in my corporations class. The ones I remember more than just the names of would be Palsgraf and MacPherson, and Ultramares. The rest I had to look up to remember the facts, but once I saw about 2 words I remembered the cases vividly. I also looked up the other Cardozo opinions and vaguely recalled them (except for Pokora), which seems to show that my casebook contained all of them, and that we had read them. Out of all of the cases, the only thing that really stands out is that my casebook seemed to say that both Cardozo and Andrews were partially right in their analyses, and that there was some mangling of terminology.
Of the Posner opinions, I distinctly remember Indiana Harbor Belt, but this case wasn’t in our casebook. Instead, it was in a coursepack created by our professor. I don’t recall any of the other Posner opinions, and when I looked them up, it was pretty evident that I had never encountered them.
Our class used the Tort Law: Responsibilities and Redress casebook by Goldberg, Sebok, and Zipursky.
Dave - May 20, 2009 at 2:36 pm
I’m told I will have a JD come Saturday. Haven’t done anything tort related since 1L, but loved Torts nonetheless.
1. Palsgraf v. Long Island R.R.: Poor Ms. Palsgraf couldn’t prove proximate cause.
2. Martin v. Herzog. “creeping fingers of dusk”. Violation of a statute is prima facie evidence of negligence.
3. MacPherson v. Buick Motor. Products liability? Something to do with privity not required?
4. Pokora v. Wabash Railway. Hmmm… know it, studied it, but seem to have forgotten it. Maybe overturns the other railroad case w/ opinion by Holmes?
5. Murphy v. Steeplechase Amusement. The Timorous may stay home, while the risk-assuming Adventurous ride The Flopper.
6. H.R. Moch v. Rensselaer Water Co. Hmmm… probabilistic calculation of damages?
7. Ultramares v. Touche, Niven. Hmmm… also recognize, but can’t remember. Maybe something to do with privity, as well? Accountants?
8. Adams v. Bullock. Kid hits trolley wires with a stick, electrocutes himself. Foreseeability?
9. Wagner v. Internation Railway. No clue.
10. Glanzer v. Shepherd. No clue.
B. RICHARD POSNER
1. Indiana Harbor Belt R.R. v. American Cyanamid. Utility v. danger in calculating strict liability.
Don’t know the rest of the Posner cases.
clerk - May 21, 2009 at 12:22 pm
you need to make this a multiple choice test to get meaningful feedback.
try on of the online quiz generators . . .
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