Publications
- Not-So-Ordinary Judges in Ordinary Courts: Teaching Jordan v. Duff & Phelps
- Download: PDF 268.13 KB
- by Ramseyer, J. Mark
- By juxtaposing at-will employment with corporate
fiduciary duties, Jordan v. Duff & Phelps creates something of a
classroom brain-twister. Yet the exchange between Frank Easterbrook
(writing for the majority) and Richard Posner (dissenting) also illustrates
two fundamental but seldom recognized principles of real-world courts.
First, the bench is properly a place for honest jurists of moderate talent
(ideally, monitored for their work). It is not a place for men and women
with the independence and sophistication of Posner and Easterbrook.
Such judges can muddy the law by trying to fix bad precedent, and worsen
the law by setting interventionist examples for their far less talented peers.
Second, by basic second-best principles, the right legal rule for a
substantial fraction of contractual disputes is not a rule designed to
facilitate efficient deals. It is a rule that dismisses a plaintiff’s claim
forthright. We live in a world with imperfect judges, costly and dishonest
attorneys, and only moderately intelligent juries. As Posner implicitly
recognizes in Jordan (but other judges rarely do), many cases are simply
beyond the capacity of such real-world courts to handle cost-effectively.
- Publication Type: WCFIA Working Paper
- Published Date: August 2006
- Field of Interest: Global Issues
- Ramseyer, Mark. "Not-So-Ordinary Judges in Ordinary Courts: Teaching Jordan v. Duff & Phelps." Working Paper 2008-0096, Weatherhead Center for International Affairs, Harvard University, August 2006.
- Also John M. Olin Center for Law, Economics, and Business, Working Paper no. 557.
