ContractsProf Blog

Editor: Myanna Dellinger
University of South Dakota School of Law

Wednesday, March 9, 2005

Cardozo v. Posner

Ssrn_logo_5 In addition to new scholarship, the SSRN empire is growing to include interesting older articles on its database so that they can be accessed in full-text form.  Recently up is Lawrence Cunningham's interesting Cardozo and Posner: A Study in Contracts, published ten years ago in the William and Mary Law Review.  in which the grizzled casebook champion and the brash young challenger go toe-to-toe.  The abstract:

This article critically evaluates the major judicial opinions on the law of contracts written by Judges Benjamin N. Cardozo and Richard A. Posner. Respectively, these judges are the first and third most influential judges on the subject measured by the frequency with which contemporary contracts casebooks reproduce their opinions. Exploring dozens of classic opinions of these judicial titans, the piece contrasts the philosophies and methods the two judges employ in wrestling with many fundamental challenges in contract law, from formation to performance to damages. The inquiry suggests that, using Isaiah Berlin's nomenclature, Judge Cardozo is the fox ["who knows many things"] of American contract law while Posner is its hedgehog ["who knows one big thing"]. Judge Cardozo displayed the thickly-textured doctrinalist, an optimizer of competing objectives; Judge Posner is a maximizer. (Accompanying tables report data on the contributions of the 15 most influential judges contributing to contract law.)

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