Talk:Richard Posner

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–I question the appropriateness of this passage: "While some mentioned Posner in 2005 as a potential nominee to replace Sandra Day O'Connor because of his prominence as a scholar and an appellate judge, he was never seriously considered for the post because of his age and because it was felt his writings would be used against him by both the left and the right." The statement is probably correct but is not demonstrably so, since only a handful of people in President Bush's inner circle were involved in the selection process and they are the only ones who know who was "seriously" considered and who was not. It may well be that Bush or one of his advisors did seriously consider Judge Posner for the vacancy.

Contents 1 Efficient breach 2 Apocryphal Reference 2.1 He's a lawyer for sure 3 Efficient breach revisited 4 More info

[edit] Efficient breach

Judge Posner's arguments pro "efficient breach" were taught in my law school contracts class and are well-known enough to be included in an article about him. The eplanation I added here about it is largely taken from the Cover article. Hope it's not overly redundant to have the explanation in Wikipedia twice. --Tregonsee 22:30, 28 January 2006 (UTC)

The brick-selling hypothetical misdescribed the nature of damages that could be collected. I replaced it with a much more abstract explanation of efficient breach. For a fuller description, the user can click over to the Efficient Breach article (where I corrected the same hypo). Dherb 10:52, 30 September 2006 (UTC)

[edit] Apocryphal Reference

My Economic Justice Professor, educated at the University of Chicago among friends of Posner, gave a humorous quote designed to show Posner's intellect. I wonder whether it's appropriate to include here: "When you ask Richard Posner how some aspect of law relates to economics, sometimes he can think of an answer instantly, and sometimes it takes him a few seconds." Ryanluck 03:51, 3 May 2006 (UTC)

See WP:V. --FRCP11 14:01, 3 May 2006 (UTC)

Thank you. That's very informative. Ryanluck 05:08, 5 May 2006 (UTC)

[edit] He's a lawyer for sure

I went to U of C law school (too much showing off, not enough teaching), but written in the bathroom stall in the law library was the following: "Dick Posner before Posner dicks you" Good advice for any law student at any school learning from any professor, I'd say. He's also a huge dick, as in asshole. This is discussion so I can say that.

Graduated in the bottom half, eh? Poor guy. Sour grapes &c. BonniePrinceCharlie 13:29, 3 December 2006 (UTC)

I also attended U of C law school, and I got to know Judge Posner very well. He is not only one of the most brilliant men I've ever met, he's also one of the nicest.

[edit] Efficient breach revisited

I do not agree that this article should reference efficient breach. If Judge Posner has written on efficient breach (and I'm certain he has), I'd like to see the cite. But efficient breach is a longstanding doctrine in contract law. It did not originate with Judge Posner. --RMKeaton 03:08, 9 July 2006 (UTC)

Hi. Thanks for your suggestion. You’re right that I should have cited some sources. I didn’t keep my first-year contracts casebook so I can’t quote you that. I think my casebook cited to Richard A. Posner, Economic Analysis of Law, but I’m not absolutely sure about this and I don’t have a copy of Judge Posner's book handy.

As near as I can find, the first formal development of the theory of efficient breach may have been Charles J. Goetz & Robert E. Scott, "Liquidated Damages, Penalties and the Just Compensation Principle: Some Notes on an Enforcement Model and a Theory of Efficient Breach", 77 Colum. L. Rev. 554 (1977).

I wasn’t saying that Judge Posner originated the theory of efficient breach, but I did say that he’s written favorably of it. To put that in a less NPOV way, he’s advocated it tirelessly – let the chips fall where they may. And he hasn’t limited his advocacy to just his articles and books either. He’s done so from the bench. Check out, for example, Patton v. Mid-Continent Systems, Inc., 841 F.2d 742 (7th Cir. 1988) and Lake River v. Carborandum Co., 769 F.2d 1284 (7th Cir. 1985). Here’s a sample from Patton, at 750, where Judge Posner argues against damages for breach of contract:

Even if the breach is deliberate, it is not necessarily blameworthy. The promisor may simply have discovered that his performance is worth more to someone else. If so, efficiency is promoted by allowing him to break his promise, provided he makes good the promisee's actual losses. If he is forced to pay more than that, an efficient breach may be deterred, and the law doesn't want to bring about such a result.

Thanks again for prompting me to do some research to back up the statement and for raising the issue for discussion here. IMO, any encyclopedia article about Judge Posner should mention this advocacy - it seems to be well known, judging from the number of law review articles about it that turned up when I did a Lexis search.

Oh, BTW, I think it might be bad form to edit someone else's talk page comments, but I changed your heading to this discussion to a formal topic header. I hope you don't mind, as I just did that for clarity to set out this discussion from the topic above. --Tregonsee 00:18, 25 July 2006 (UTC)

Additonal research on the subject, added later. A little more research and I found this[1] about the origins of efficient breach theory:

[T]he theory of efficient breach was first articulated by Robert Birmingham in his article, Breach of Contract, Damage Measures, and Economic Efficiency, 24 RUTGERS L. REV. 273, 284 (1970) (“Repudiation of obligations should be encouraged where the promisor is able to profit from his default after placing his promisee in as good a position as he would have occupied had performance been rendered”), and was christened by Charles Goetz and Robert Scott in Liquidated Damages, Penalties, and the Just Compensation Principle: A Theory of Efficient Breach, 77 COLUM. L. REV. 554 (1977).

Here's Judge Posner again. The quote cited[2] is apparently taken from the first edition of his Economic Analysis of Law:

. . . [I]n some cases a party [to a contract] would be tempted to breach the contract simply because his profit from breach would exceed his expected profit from completion of the contract. If his profit from breach would also exceed the expected profit to the other party from completion of the contract, and if damages are limited to loss of expected profit, there will be an incentive to commit a breach. There should be.

Again, thanks for prompting me to provide some documentation. Wikipedia is all about verification. --Tregonsee 00:40, 27 July 2006 (UTC)

[edit] More info

Anybody beside me believes this http://nwn.blogs.com/nwn/2006/11/judge_richard_p.html (or parts of it) deserve incorporation into the article? -- Wesha 16:18, 1 February 2007 (UTC)

What do you mean "or parts of it"? It has plenty of independant commentary to be notable and mentioned in the article at least. Cool Hand Luke 17:20, 1 February 2007 (UTC)