Document Type

Article

Publication Date

2019

Disciplines

Contracts | Law

Abstract

If Richard Posner did not invent the term “efficient breach,” he at least was its most aggressive marketer. I confess that nowadays I do not find the concept particularly useful, but that does not detract from its value. It was a catalyst, forcing scholars to consider the economic function of contract remedies. Any assessment of Judge Posner’s contracts jurisprudence must acknowledge that contribution.

In this paper, I will consider three of his opinions that appear with some regularity in contracts casebooks – Northern Indiana Public Service Company v. Carbon County Coal Company, Empire Gas v. American Bakeries, and Lake River v. Carborundum. To anticipate my conclusions, in the first I find his analysis and conclusions to be right (with one tiny quibble). In the second, I find his conclusion on liability correct, given the statute. I believe he could have been more aggressive on the remedy issue. Still, I cannot conclude that he was wrong. On the third, I conclude that he got the outcome wrong and made a number of other errors along the way.

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