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Traditional Versus Economic Analysis: Evidence from Cardozo and Posner Torts Opinions

Posted: 19 Mar 2010 Last revised: 17 Sep 2010

Lawrence A. Cunningham

George Washington University

Date Written: 2010

Abstract

This Article contributes a new approach and evidence to the longstanding debate concerning the relative merits of traditional legal analysis compared to contemporary economic analysis of law. It evaluates prominent opinions of two judicial exemplars of the contending conceptions, the traditionalist Benjamin Cardozo and the economist Richard Posner, in torts, the field where economic analysis has greatest impact. Comparative critique of their opinions appearing in current torts casebooks, where they are the most ubiquitous judges, provides evidence that traditional legal analysis is a more capacious and persuasive basis of justification than contemporary economic analysis of law.

Keywords: torts, economic analysis of law, law and economics, traditional legal analysis, jurisprudence, Cardozo, Posner, juries, judges,Hand formula, negligence, negligence per se, proximate cause, standards, rules, statutory violations, least cost avoider

Suggested Citation

Cunningham, Lawrence A., Traditional Versus Economic Analysis: Evidence from Cardozo and Posner Torts Opinions (2010). Florida Law Review, Vol. 62, 2010. Available at SSRN: https://ssrn.com/abstract=1574926

Lawrence A. Cunningham (Contact Author)

George Washington University ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-0732 (Phone)

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