Lawrence A. Cunningham, Traditional Versus Economic Analysis: Evidence from Cardozo and Posner Torts Opinions

62 Fla. L. Rev. 667 (2010) | | | |

CASE COMMENT ::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. Proponents of economic analysis offer to show law’s efficiency as a descriptive matter and prescribe using it especially in tort law, the field where economic analysis has greatest impact. Skeptics question the method’s descriptive accuracy and normative appeal, compared to traditional legal analysis, which has made similarly influential contributions to tort law. While other scholars use theoretical, philosophical, and doctrinal techniques to investigate, this Article considers how the methods fare in the tort opinions of judicial exemplars of the contending conceptions: Benjamin Cardozo, quintessential traditionalist, and Richard Posner, avatar economist. Comparative evaluation of those opinions, the most ubiquitous in torts casebooks, provides evidence that traditional legal analysis is a more capacious basis of justification than contemporary economic analysis of law and that this feature, though suffering from some indeterminacy, yields more persuasive justification in a wider range of cases.

Cardozo’s distinctiveness is a grand rhetorical style exemplifying traditional method. During a twenty-four-year career, he displayed pragmatic sensibilities blending intuitions of substantive justice with thick doctrine incorporating economic, moral, and social factors. In Isaiah Berlin’s terms, Cardozo was a fox who knew many things. Cardozo frequently shifted among doctrines, rendering complex opinions that demonstrate the capacity, power, and limits of traditional legal analysis.

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