Traditional Versus Economic Analysis: Evidence from Cardozo and Posner Torts Opinions
Lawrence A. Cunningham
George Washington University
Florida Law Review, Vol. 62, 2010
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
Date posted: March 19, 2010 ; Last revised: September 17, 2010