Fault in Contract Law: Richard Posner, "Let Us Never Blame a Contract Breaker"

Richard Posner is Senior Lecturer in Law at the University of Chicago Law School and Judge on the U.S. Court of Appeals for the Seventh Circuit. This talk, in which he argues that concepts of fault or blame are not useful addenda to the doctrines of contract law, was recorded September 27, 2008 as part of a conference at the University of Chicago Law School entitled, "Fault in Contract Law." The conference was organized by Frank and Bernice Greenberg Professor of Law Omri Ben-Shahar and Fischel-Neil Visiting Professor of Law Ariel Porat.

[@Lawofimprobability]

The guy at 25:58 is great. He points out a lot of the incoherence that Posner overlooks in his quest for a utilitarian view that assumes a high ability to negotiate and predict.

[@mgandersson8679]

The "guy" you refer to is Richard Epstein, an Emeritus professor at UChicago Law, and currently at NYU Law. He wrote a brilliant book, "The Classical Liberal Constitution," which is generally considered conservative or libertarian, and it is easier to see why he takes such heated issue with Holmes and his legal realism predilections that are not always very consistent, or perhaps, often free-ranging and indulgent. I do think Posner's responses are sober and fair, and clearly reflect his "pragmatic" solidarity with Holmes. That his (or anyone's) doctrine or opinion eventually faces contextual aging, is not a basis, as Posner entertainingly points out, to per se reject it: the reader has a reading obligation to close the context gap and either it makes sense or applies, or is doesn't. Often it does, just as Plato and Aristotle still do. I do agree that "The Common Law" by Holmes is generally overlooked; indeed few current law professors even refer to it. Posner's book "The Essential Holmes" is quite good, and efficient. Holmes Common Law edition by HUP is much better than the compressed Little, Brown volume.

[@michelleeaton6602]

A fascinating talk...

[@ryanjavierortega8513]

The below is an insightful Comment of which I am quoting in full as I am posting it on my Google+ Page, and as Intellectual Property is Property of great import, I wouldn't want to be accused of thievery. eswyatt Sorry Epstein, but a requirement that the defendant have made a choice is not a "moral element" (though it overlaps moral intuition); it's simply a means of ensuring that punishment (or damages) is not imposed unless it has a chance of influencing the behavior of others. Holmes is simply giving a secular reason for a nominally moral element.

[@user-bj1cb5kv8l]

Robinson Christopher Moore Timothy Lee Timothy

[@Scruffed]

It's a terrible thing, moral talk... Ironic but true.

[@MrHomezee]

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