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Harvard Law Review


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Copyright (c) 1999 The Harvard Law Review Association

Harvard Law Review

March, 1999

112 Harv. L. Rev. 1026

LENGTH: 9504 words


Cardozo. By Andrew L. Kaufman. Cambridge: Harvard University Press. Pp. xii, 731. $ 55.00.

NAME: Reviewed by Judith S. Kaye *


* Chief Judge, Court of Appeals of the State of New York; Chief Judge of the State of New York. I cannot sufficiently thank or praise my counsel, Susan Knipps, for her assistance in the preparation of this book review.


... The setting was made even more ideal by my discovery, early on in the book, that Benjamin Cardozo himself had visited the area back in 1907 - possibly his sole excursion abroad (p. 607 ) - writing his cousin Edgar Nathan that he had "used up [his] stock of superlatives in Switzerland" (p. 97). ... Analyzing judicial greatness is a daunting task. ... Professor Kaufman''s more thorough examination exposes a few signs of imperfect humanity. ... Chief Judge Willard Bartlett wrote just such a fact-bound, "technically sound," but crabbed dissent. ... Writing for a bare majority, the junior judge plowed through a line of cases generally recognized as exceptions to the general no-liability-without-privity rule and extracted a new principle that unified the exceptions: foresight of danger creates a duty to avoid injury. ... He thought rigorously and wrote vigorously - what better description of a jurist''s jurist? ... But Cardozo''s greatness extends beyond his contributions to casebooks. ... A decade after delivering the lectures, moreover, Cardozo was able to apply the same basic tenets to the most pressing constitutional issues of his time. ... Today many legal thinkers believe that Cardozo has been greatly overrated - that his liberalism is a fake, his judicial philosophy a bunch of platitudes, his famous writing style obese and archaic. ... Professor Kaufman suggests the following candidates for "legal writing''s Hall of Fame" (p. 449): ... And the main reason to read Cardozo today is that Professor Kaufman deepens our understanding of the master judge and his craft. ...



Cardozo is a big book - forty-one years in the making - about a giant in American law. n1 It demands, and deserves, good long sits, with sufficient time and space for frequent flipping back to endnotes, and pleasant vistas for periodic pondering.

My own circumstances dovetailed perfectly with the physical demands of the book. I read it during my Court''s July recess, in a house high in the Alps of Switzerland, which offered both space and scenery. The setting was made even more ideal by my discovery, early on in the book, that Benjamin Cardozo himself had visited the area back in 1907 - possibly his sole excursion abroad (p. 607 n.12) - writing his cousin Edgar Nathan that he had "used up [his] stock of superlatives in Switzerland" (p. 97). Although I surely understand Cardozo''s enthusiasm for the beauty of Switzerland, fortunately I squirreled away a few superlatives. I knew right off that I would need them for Cardozo.

In fact, I read the book from the top of another mountain, as Chief Judge of the Court of Appeals of the State of New York - Cardozo''s title, Cardozo''s court. n2 I occupy Cardozo''s desk in Albany Chambers and his center chair at the Court''s daily conferences and oral arguments, his spittoon at my feet (confident that neither of us would dream of using it for its intended purpose). My home is a mere five blocks from his, on the Upper West Side of Manhattan. My husband [*1027] and I are long-time members of the Spanish and Portuguese Synagogue - his congregation - and friends of Cardozo family members.

Thus, for me, much of the book was immediately familiar, especially the description of the New York Court of Appeals, the core of Cardozo''s professional life. The Court of Appeals building Professor Kaufman describes remains our home today, though the courtroom''s "red velvet curtains" (p. 131) have been modernized, the chandeliers brightened, and TV cameras added. To this day, portraits of former judges line the walls - in a sense, a history of New York jurisprudence - with former New York State Supreme Court n3 Chief Justices John Jay and James Kent hovering over the Chief Judge''s chair. A nonresident court, we come together for Session every five or so weeks. My suspicion is that the Judges'' separations really do make our hearts grow fonder - we remain an immensely collegial group, excitedly anticipating those Albany times together. I fully understand Cardozo''s reluctance to leave this caring, stimulating environment for Washington. n4 Still the long-day tradition abides: conference each Albany morning; soup for lunch in Chambers; afternoon oral arguments; dinners out together; evenings back in Chambers preparing for the next day (pp. 137-38). n5

We have perpetuated, but refined, the concept of random assignment of cases to individual judges for reporting and writing (p. 132), and continued another tradition of Chief Judge Cardozo''s day: we are current in our docket, generally handing down opinions within two months of argument (p. 133). n6 And although today''s cases obviously are different from his day - reflecting both the pervasive codification [*1028] of the law and the problems of a new age - the common law remains the grist of the daily docket, as it does for state courts nationwide: wrestling with issues of duty and damages; parsing promises; reviewing the fidelity of fiduciaries. And always the purpose for common law courts is the same: case by case, to build on the past and anticipate the future, to establish a principle that both resolves the litigation and guides the daily lives of the citizenry.

So despite some inevitable change in the decades since his death, Cardozo''s presence is never far at Court of Appeals Hall - from the books and furniture we use, to the schedule we observe, to the cases we cite. n7 Living in Cardozo''s environment, continuing to do his work, I naturally enjoyed finding comparisons and discovering new details about him. The book abounds with them.

But as I gazed out on Alpine vistas this past summer, what especially dominated my thoughts was the question of Cardozo''s influence. Precisely what made him a "great judge" - the verdict of Kaufman (pp. 567-69) and most others - one of a handful of great American judges, the preeminent state court judge of all time? On a collegial high court of clearly competent jurists, with cases assigned randomly, why was Cardozo so singular? Why, more than 60 years after his death, are his (distinctively his) Court of Appeals opinions and other writings so widely known? Is his greatness simply a historical fact, or does he have relevance today? In my progression from law student to Chief Judge, I have pondered these same questions many times over the past 35 years, but never before have I felt so prepared to answer them.

That three books on Cardozo have appeared in recent years n8 shows that his influence is a matter of more than parochial interest. Kaufman''s is by far the most definitive biography written of Cardozo, decisively filling any gaps earlier works may have left. But the book does much more. By presenting Cardozo''s work so completely and dispassionately, n9 the book affords the reader a much better understanding of [*1029] why this gentle, private, noncontroversial, state court, common law judge was able to achieve and maintain a place among the most glittering stars of the American judiciary. Most definitely, Kaufman''s "work has been worth the wait." n10

What''s So Great About Cardozo?

Analyzing judicial greatness is a daunting task. The basic elements, broadly viewed, seem quite familiar and rather dry. Under the biographer''s high-powered microscope, however, rich details emerge, revealing the individualized texture behind the generalities. Andrew Kaufman''s exquisitely detailed study provides just such a view. While it relates the story of Cardozo''s life in narrative form, several patterns emerge from the facts and anecdotes. As I read the book, I came to conclude that Cardozo''s greatness has three sources: his personality, the performance of his craft, and his general philosophy of law.

A. Shining Personal Qualities

The key to understanding Cardozo''s influence begins with the person - the human protoplasm that inhabits every judicial robe, and so magnificently distinguished his. Although the work of a judge plainly must be the test of greatness, in Cardozo''s case his personal qualities unquestionably both engendered and enlarged his stature.

There is not, there will never be, a more comprehensive portrait of Cardozo. Professor Kaufman has read everything by n11 and about n12 his subject and seemingly interviewed everyone whose life touched his, including Supreme Court Justices in Washington, classmates and relatives in New York City, and waiters and bellmen in Albany. The book is so thorough that it addresses even the most minute curiosities one [*1030] might have about the man. Light or dark eyes? n13 A frail or robust voice (p. 183)? n14

Kaufman''s need for an extra-large canvas for his portrait is understandable. Cardozo''s 68 years - beginning shortly after the Civil War in 1870 and ending with the New Deal in 1938 - were a time of monumental change. Against this backdrop, his life story is mini-series material: born into a proud, elite Sephardic Jewish family (p. 6); n15 the family name tainted by charges of corruption against his father, a judge, driven to resign from the bench (pp. 18-19); tutored at home by Horatio Alger, no less (pp. 25-26); academic distinction at Columbia College (pp. 38-39); n16 phenomenal success as a "lawyer''s lawyer" for 23 years in New York City (pp. 53-113); n17 an offer of appointment to the federal district court (pp. 100-01). n18

And the story just gets better: the triumph of election to the very trial court his father left in disgrace (pp. 121-26), followed weeks later by gubernatorial designation to the State''s high court, at the urging of the Court of Appeals judges themselves (pp. 127-29); n19 rapid recognition as the Court''s, indeed the state judiciary''s, brightest star (p. 162); election as Associate Judge (p. 164), then Chief Judge of the leading common law tribunal of his time (pp. 178-82); presidential appoint [*1031] ment, seemingly by acclamation, to the United States Supreme Court, n20 filling the slot of his own judicial hero, Oliver Wendell Holmes (pp. 461-71); an early death, only six years after reaching the nation''s highest court (p. 567).

Those are the public facts. But what of the man who lived through these twists of fate? Reflecting on Professor Kaufman''s prodigious research, I am now willing to accept that the picture that emerges - the reserved, formal, bookish, n21 though thoughtful and engaging, human being - is not simply the best picture we will ever have of Cardozo. It also is the total, true Cardozo - that despite his efforts to keep his private life totally private, n22 we have a good sense of what he was like on and off the bench.

While we may not know Cardozo''s innermost thoughts on some subjects, we know that his was a life of rectitude, responsibility, and dedication to duty - duty to the law and to a family haunted by illness and death. n23 Happily, however, we also know that, within an almost ethereal sphere of purity, Cardozo''s personal life was neither "a cold nor an empty one" (p. 568). He was well liked, n24 and his circle of friends and family filled whatever little nonworking time he had.

One writer has suggested that "by the unanimous testimony of his contemporaries, Cardozo was a saint." n25 Professor Kaufman''s more [*1032] thorough examination exposes a few signs of imperfect humanity. We learn, for example, that Cardozo was ambitious and that he was vain on several scores, from coveting praise (p. 568) to fussing over his clothing and famous "tousled hair" (p. 184). n26 Kaufman also discusses some of Cardozo''s attitudes on race and gender that, although perhaps common for his time, still unsettle the modern reader. n27

Notwithstanding these flaws, Cardozo''s personal qualities were surely an element of his greatness as a judge. He was born with a "halo," but it was by no means self-perpetuating; he worked hard to maintain it. Many of his most memorable writings invoke the values that shaped his own life: honor, integrity, individual responsibility, right and proper conduct. One may forget the details of the dealings between the real estate operator Walter J. Salmon and the wool merchant Morton H. Meinhard, but never Cardozo''s ringing words: "A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior." n28

Professor Kaufman was clearly intent on presenting not an adoring portrait of Cardozo but an objective one, and his exhaustive research evidences his commitment to that goal. Given the author''s purpose, it is all the more significant that the picture that emerges is an enormously flattering one - Kaufman even answers several criticisms that have hovered around Cardozo. n29 In the end, the book establishes that [*1033] this judge earned his place in the nation''s history by the sheer merit of his work - not by ideology, or idiosyncracy, or celebrated constitutional cases. Quite the reverse, he was a quiet pragmatist, nurtured in the "ordinary" cases of the common law. n30 He earned his place in American history by a unique talent, tireless dedication, and impeccable integrity. Kaufman''s opening sentence says it all: "Benjamin Nathan Cardozo lived for the law, and the law made him famous" (p. 3).

B. Vigor in Judging

Cardozo''s career placed him on two significant courts during two watershed periods: the New York Court of Appeals from 1914 to 1932, when many basic common law principles were being tested in light of new social and economic realities, and the United States Supreme Court from 1932 to 1938, when cataclysmic battles raged over the constitutional status of the regulatory state. Cardozo distinguished himself in both roles - although without question, he is best remembered for his work as a common law judge. n31

Professor Kaufman''s consistent conclusion is that Cardozo "was, and only aimed to be, a modest innovator" (p. 248); that, as a person to whom the values of tradition and order were important, he was only a "cautious" innovator (p. 359). After Professor Kaufman''s four decades of research, I would not lightly quarrel with him - particularly with respect to a conclusion that has been authoritatively seconded by others. n32 Cardozo was surely no firebrand. n33 Yet as many of his Court of [*1034] Appeals opinions show, in at least two important respects, as a judge he was bold: he thought globally - he looked for "the general in the particular" n34 - and he wrote daringly. Particularly after my own fifteen years on his court, it is plain to me that Cardozo was not timid in analysis or expression.

MacPherson v. Buick Motor Co. n35 is a prime example of Cardozo''s signature combination of legal caution and boldness. Kaufman does an excellent job of laying out the untidy state of New York tort law when the wheel on Donald MacPherson''s 1911 Buick collapsed on the road to Saratoga Springs. At the beginning of this century, as Kaufman relates, New York formally adopted the English rule of Winterbottom v. Wright, n36 which recognized manufacturers'' liability only to purchasers with whom they were "in privity." But New York courts had also carved exceptions for more remote purchasers of products deemed "inherently dangerous," like mislabeled extract of belladonna. n37 By filing his suit not against the dealer from whom he had purchased his car, but against the motor company that had built it, MacPherson was litigating along a doctrinal fault line - one that was poised to yawn larger in a society that was becoming increasingly motorized, mobile, and mass-produced. Cardozo bridged this breach with a new rule more suited to emerging social realities. He shifted the paradigm, but he did so without fanfare. The result, as Judge Posner has observed, was an opinion that stands as "the quietest of revolutionary manifestos." n38

What is bold about Cardozo''s opinion begins with the timing of it. MacPherson was handed down on March 14, 1916, barely two years after Cardozo left the practice of law, while he was still a temporary judge of the Court of Appeals, and over the dissent of the Chief Judge. n39 Some brand-new junior judges might have found the circumstances a bit intimidating, taking respectable refuge on more solid, narrow ground. Although a common law high court''s role is to "declare and settle" the law, n40 both the immediate consequences of a broad rule and the long-term impact of stare decisis tend to be strong moderating influences: if we adopt this principle today, where will it take the law in future, unforeseeable cases? n41

[*1035] Chief Judge Willard Bartlett wrote just such a fact-bound, "technically sound," n42 but crabbed dissent. n43 The plaintiff''s automobile, after all, was traveling at a speed of only eight miles an hour - barely outrunning the stagecoach - at the time of the accident; n44 Buick had purchased this wheel from a reputable manufacturer that had previously furnished 80,000 wheels, none defective; n45 if the rule allowing suit by a subvendee against a manufacturer was to be enlarged, let that change come from the legislature. n46

Cardozo, however, saw in this one car crash a green light of jurisprudential opportunity rather than a doctrinal dead-end. Writing for a bare majority, n47 the junior judge plowed through a line of cases generally recognized as exceptions to the general no-liability-without-privity rule and extracted a new principle that unified the exceptions: foresight of danger creates a duty to avoid injury. n48 The exceptions then became the rule. Cardozo''s opinion breathes with the elasticity and forward progress of the common law. A new product, the automobile, had created new dangers; the law would therefore evolve to create new protections. n49

The path of Cardozo''s bold reasoning in MacPherson is, moreover, lit by learning and literary style. Succinctly, he reviews New York cases, federal decisions, English authority, other state court holdings, as well as the views of treatises and academic commentators, seamlessly weaving them into his flowing argument. Although MacPherson [*1036] does not display Cardozo''s most colorful or epigrammatic prose, its language is forthright and strong:

We have put aside the notion that the duty to safeguard life and limb, when the consequences of negligence may be foreseen, grows out of contract and nothing else. We have put the source of the obligation where it ought to be. We have put its source in the law. n50

Clearly Cardozo.

Kaufman reviews dozens of cases of similar scholarship, subtlety, and style, organized by subject - equity, negligence, contracts, and criminal law. Many of Cardozo''s cases are enshrined in first-year textbooks: Palsgraf; Meinhard; Wood v. Lucy, Lady Duff-Gordon; and so on. One of the great pleasures of the book is the opportunity it presents to study these legal landmarks anew in their rich context, to appreciate the close choices they presented for the Court, to admire Cardozo''s deft hand in extracting and articulating principles that still live in the law, to savor Cardozo''s exquisite expression. While Cardozo recognized that the "sovereign quality" of an opinion was clarity, he also knew that other qualities - "persuasive force," "sincerity and fire," "alliteration and antithesis," the "terseness and tang of the proverb and the maxim" - were essential for an opinion to "win its way" (p. 447). n51

As seen from his search "for the just word, the happy phrase" n52 to his "groupings of fact and argument and illustration so as to produce a cumulative and mass effect," n53 literary style mattered to Cardozo. People differ about the "architectonics" (Cardozo''s word) n54 of his opinions - there is a hearty band on both sides of this issue. n55 But whether one''s literary taste runs to the florid or the frugal, Cardozo is without doubt among America''s most quotable judges.

Favorite among Cardozo''s literary flights was the technique of sentence inversion: "Not lightly vacated is the verdict of quiescent [*1037] years." n56 Vivid. Attention-getting. Memorable. "To this hospital the plaintiff came in January, 1908." n57 Well - chalk one up for the other side.

Cardozo advocated for sparse statements of fact in judicial decisions, n58 and his opinions prove that this approach can yield arresting results. Who, after all, can forget the defendant who "styled herself "a creator of fashions,''" whose "favor helped a sale"? n59 Or the sketch of events on the Long Island Railroad platform that immortalized Helen Palsgraf? n60 Or the terse account of George Kent''s pursuit of plumbing perfection for his pricey country residence? n61 The wealth of detail in Kaufman''s book gives a glimpse of the types of facts Cardozo left on the cutting room floor: that Mrs. Palsgraf''s principal injury was a stuttering condition allegedly caused by the accident (p. 287), that Mr. MacPherson''s accident took place while he was driving a sick neighbor to the hospital (p. 270). Some judges might have opted for more atmospherics, but Cardozo knew when too many facts would impede the force of his legal argument.

Time and again throughout his opinions, Cardozo shows not only an ability to perceive precisely the right balance that will "declare and settle the law," n62 but also a gift to articulate it persuasively, in words that fix the principle forever. He thought rigorously and wrote vigorously - what better description of a jurist''s jurist?

C. A Clear Philosophy

Cardozo''s judicial opinions, without question, assure him a place in the pantheon of great judges. But Cardozo''s greatness extends beyond his contributions to casebooks. With his extrajudicial writings, he erected a framework for understanding how judges go about their [*1038] work. Thus, in his lifetime he not only changed the law, but also changed the way many thought about the law.

Cardozo''s first - and best known - jurisprudential exposition was The Nature of the Judicial Process, delivered in February 1921 as the Storrs Lectures at the Yale Law School. His performance in New Haven was, by all accounts, mesmerizing. Kaufman quotes Arthur Corbin:

Standing on the platform at the lectern, his mobile countenance, his dark eyes, his white hair, and his brilliant smile, all well lighted before us, he read the lecture, winding it up at 6 o''clock. He bowed and sat down. The entire audience rose to their feet, with a burst of applause that would not cease. Cardozo rose and bowed, with a smile at once pleased and deprecatory, and again sat down. Not a man moved from his tracks; and the applause increased. In a sort of confusion Cardozo saw that he must be the first to move. He came down the steps and left, with the faculty, through a side door, with the applause still in his ears.


Never again have I had a like experience ... Both what he had said and his manner of saying it had held us spell-bound on four successive days.

(p. 204) n63

Cardozo''s statement early on in his first lecture - "I take judge-made law as one of the existing realities of life" n64 - was seen by some as an admission verging on heresy. n65 As Kaufman makes clear through his discussion of the work of Oliver Wendell Holmes, John Chipman Gray, and Roscoe Pound, Cardozo was not the first to espouse such a view (pp. 200-03). Yet his account seems to have struck a popular and professional nerve others missed. The word was out: judging is more than a matter of "matching the colors of the case at hand against the colors of many sample cases spread out upon [a] [*1039] desk." n66 It is an endeavor marked - within limits - by indeterminacy and discretion, by creativity and choice.

In his lectures, Cardozo explored four interrelated "methods" of deciding cases when existing precedents do not determine the controversy at hand: logic ("the method of philosophy"); history ("the method of evolution"); "the customs of the community" ("the method of tradition"); and "justice, morals and social welfare, the mores of the day" ("the method of sociology"). n67 He posited a functional approach to law: the ultimate test of a legal rule is not how well it fits into some abstract theory, but how well it performs in the real world.

Although at the time a judge of the New York State Court of Appeals - where common law, not constitutional issues dominated the docket - Cardozo made special note of the applicability of his approach to constitutional adjudication. The words and phrases enshrined in the Constitution were unchanging, but their meaning varied with time: "A constitution states or ought to state not rules for the passing hour, but principles for an expanding future." n68 Judges must therefore construe constitutional concepts flexibly, in light of current conditions, and with due respect for the judgments of the legislative branch. When reviewing statutes, judges must be careful not to substitute "their own ideas of reason and justice for those of the men and women whom they serve." n69

Some have observed that Cardozo''s outline is "not very helpful in the decision of actual cases." n70 True, The Nature of the Judicial Pro-cess provides no algorithm for judging. Yet it is no brief for nihilism either. n71 Cardozo is careful to stress the limits on a judge''s discretion, n72 and notes that stability and predictability play a significant role [*1040] in a well-ordered society. n73 However, he recognizes that ultimately, the issue comes down to individual wisdom and humanity, writing, "If you ask how [a judge] is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself." n74

The Nature of the Judicial Process stated Cardozo''s juridical philosophy; his opinions applied it. Clearly, he was preaching what he practiced. From the bench of the Court of Appeals, he inveighed against "the dangers of "a jurisprudence of conceptions,''" n75 chastising those "who think more of symmetry and logic in the development of legal rules than of practical adaptation to the attainment of a just result ...." n76 He used his four "methods" in deciding cases and made no attempt to hide it. n77 His common law opinions drew upon accepted notions of justice and reasonable conduct, such as he saw them, to decide individual disputes and lay down guidelines for future action. n78 Even his most progressive decisions stress the continuity of the common law - the stability of the system, if not the precise application of doctrines - over time. n79

A decade after delivering the lectures, moreover, Cardozo was able to apply the same basic tenets to the most pressing constitutional issues of his time. As a Justice of the United States Supreme Court, he again counseled against letting labels and categories determine out [*1041] comes. n80 He continued to follow a pragmatic, case-by-case approach that would decide the issue before the Court on its facts and leave further glosses and extensions to the future. n81 He advocated a flexible construction of constitutional restraints upon regulation of economic matters, frequently voting - often in the minority - to uphold legislative efforts to improve social and economic conditions. n82

Though Cardozo''s support of New Deal legislation earned him a reputation as a "liberal," his philosophy was not an ideology. Rather it was a method, an attitude toward the job of a judge. Kaufman suggests that "most judges still go about the job of deciding cases within the framework that Cardozo described" (p. 200). That certainly accords with my personal experience. Moreover, despite my own wide reading about my beloved craft, I have yet to find a better articulation of what appellate judges do.

Does Cardozo Matter Today?

Cardozo was without question regarded as a great judge during his lifetime. Evidencing the esteem of his contemporaries, the Harvard, Yale, and Columbia law reviews in 1939 jointly dedicated an issue to his memory. But what about 1999? Does he matter much today?

Professor Kaufman suggests that Cardozo''s standing may have slipped over the years: "The new generations that have appeared since Cardozo''s death have not experienced the spell of his personality; their criticism has been louder" (p. 569). n83 Judge Posner echoes this concern:


Although the legal establishment canonized Cardozo during his lifetime and he is still widely considered not merely one of the greatest judges of all time but a judicial saint, there is a considerable, perhaps an increasing, undercurrent of dubiety. Today many legal thinkers believe that Cardozo has been greatly overrated - that his liberalism is a fake, his judicial philosophy a bunch of platitudes, his famous writing style obese and archaic. n84

We may well ask, however, whether this increasing dubiety reflects a more objective assessment of Cardozo''s merits or the postmodern impulse to deface all purported community pillars.

As a man who believed in progress and accepted the fact of change, Cardozo understood that time would take its toll on even the best judges'' work:

The work of a judge is in one sense enduring and in another sense ephemeral. What is good in it endures. What is erroneous is pretty sure to perish. The good remains the foundation on which new structures will be built. The bad will be rejected and cast off in the laboratory of the years. n85

From the perspective of more than one-half century after his death, Cardozo has clearly passed his own test. In this day when opinion polls seem to settle so many contested issues, Judge Posner''s computerized calculations of Cardozo''s standing are one good source for gauging his current value. The data show that Cardozo stands head and shoulders above the next-best-known state court judge, Roger Traynor, in citations in academic writings. n86 He is consistently cited ahead of his Court of Appeals colleagues by state and federal courts, and leads them all in opinions in torts and contracts casebooks. n87 His federal jurisprudence also left its mark: in the last decade, Cardozo''s Supreme Court opinions were cited more frequently than those of his most highly regarded colleagues - Harlan Fiske Stone and Louis Brandeis - from the same period. n88 Not bad.

While the statistics are surely impressive, and indeed likely understate Cardozo''s influence, I find much more meaningful my own experience on the Court of Appeals, where Cardozo''s writings remain significant in our decisionmaking process. The changes in the landscape since Cardozo''s day are manifest. Technology is obviously different: MacPherson''s runabout would be left in the dust on the New York Thruway. Social relations are also different thanks to the civil rights movement and a sexual revolution. The legal landscape is different [*1043] too: since Cardozo''s day, we have witnessed continuing "statutorification" n89 of the law, with legislation displacing the common law in many areas as the primary source of legal precepts. n90

Yet in this vastly changed world, many of Cardozo''s opinions continue to shine as a polestar for the resolution of disputes. "The Flopper" may be long gone from the Coney Island boardwalk, but the basic principles of Murphy v. Steeplechase Amusement Co. n91 live on, having just recently been applied to sport facilities that cater to some of today''s popular recreational pursuits: indoor tennis and karate. n92 The primitive firefighting system at issue in H.R. Moch Co. v. Rensselaer Water Co. n93 has also gone by the boards, but the court''s conclusion that the zone of duty may be limited to avoid crushing levels of liability helped resolve a suit that arose from the last New York City blackout. n94

Cardozo''s bean weigher in Glanzer v. Shepard n95 and accountant in Ultramares Corp. v. Touche n96 were central to our definition of duty for contemporary architectural engineers n97 and worldwide accounting firms. n98 And to this day, Mrs. Palsgraf regularly resurfaces in modern dress - one of her last appearances as a nurse injured by a falling wall fan, seeking recovery against a maintenance company under contract with the hospital. n99 During my own service on the New York Court of Appeals, our opinions have dozens and dozens of times cited Cardozo, building upon precedents of an earlier age to fit the law to modern society, blending a phrase from the Hall of Famer, borrowing the halo that surrounds his work.

Of course, not all of his opinions have withstood the test of time. The rule of Schloendorff v. Society of New York Hospital n100 - exempting charitable hospitals from liability for the negligence of their medical staff - was found to be "at variance with modern-day needs and with concepts of justice" in Bing v. Thunig. n101 Mapp v. Ohio n102 [*1044] paid homage to Cardozo''s image of the blundering constable, but effectively overruled People v. Defore n103 all the same. n104

While time may have undermined some of Cardozo''s holdings, it has not eroded the vitality of his description of the judicial process. n105 Debates over whether judges "find" law or make it, n106 and what sources they should draw upon when rendering a decision, continue to this day. n107 Cardozo stated the case for dynamic (yet restrained) judicial innovation as well as anyone has, or probably will. Across the decades, his voice still elevates the discourse:

The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to "the primordial necessity of order in the social life." n108

Nor has time dulled the brilliance of Cardozo''s prose. Professor Kaufman suggests the following candidates for "legal writing''s Hall of Fame" (p. 449):

"Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it." n109

[*1045] "The tendency of a principle to expand itself to the limit of its logic may be counteracted by the tendency to confine itself within the limits of its history." n110

"Danger invites rescue." n111


"The assault upon the citadel of privity is proceeding in these days apace." n112 (pp. 449-50)

Today''s judges need not copy Cardozo''s ornate style flourish for flourish. What tripped off the tongue seventy years ago sometimes sticks in the throat today. Yet appellate judges must struggle to find the elusive phrase, the expression that will capture and fix the principle that controls the case. To make a rule and make it memorable: this occurs only at the intersection of law and literature, a juncture Cardozo - but few other judges - frequented.

At bottom, the main reason to read Cardozo today is that he still teaches us a great deal about the fine art of judging. His skillful handling of precedents, his forthright balancing of values, his luminous language are steady sources of learning for all students of the law. "Cardozo''s record and reputation have made him a point of comparison for other judges, usually in terms of a judge or judicial nominee falling short of the mark, as being "no Cardozo.''" (p. 569). He set a standard of judicial excellence for his day - and for ours.

And the main reason to read Cardozo today is that Professor Kaufman deepens our understanding of the master judge and his craft. Looking back on July, I believe that Switzerland helped, but is not required. Being Chief Judge helped, but is not required. Cardozo would be a good read for anyone, anywhere.


n1. In 1957, during Kaufman''s clerkship for Felix Frankfurter, Frankfurter and Joseph Rauh, Cardozo''s last clerk and Frankfurter''s first, suggested to Kaufman that he write a book on Cardozo (ix). Kaufman set to work immediately, interviewing Learned Hand on November 12, 1957 (p. 608 n.23) and Charles C. Burlingham one day later (p. 592 n.43). Cardozo contains 578 pages of text and - gulp - 123 pages of endnotes. Although plainly a serious project, the reading - all the way through to the last endnote - is made pleasurable by the intertwining of personal and legal materials, with frequent explanatory pauses and summaries. The book is, moreover, beautifully laid out and put together.

n2. In Cardozo''s words: "The post of chief judge of the Court of Appeals is in my opinion one of the great official positions in the land" (p. 186). I share the sentiment. Cardozo served on the Court of Appeals from 1914 to 1932, and in those 18 years participated in 8415 cases, writing 566 signed opinions and (remarkably) only 16 dissents (p. 166). He was an Associate Justice of the United States Supreme Court from 1932 until his death in 1938.

n3. The Supreme Court preceded the Court of Appeals, which was first established in 1847. See Judith S. Kaye, Commentaries on Chancellor Kent, 74 Chi.-Kent L. Rev. (forthcoming 1999).

n4. Less than a month after becoming a Justice of the United States Supreme Court, Cardozo wrote to Felix Frankfurter: "I have been very homesick for my old court and for the scenes and faces of a life-time... [In the Supreme Court] there is nothing like the genuine debate - the painstaking and willing interchange of views - that gave my old court whatever strength it had. One feels as if one were ploughing a lonely furrow." Gallery, Harv. L. Bull., Summer 1998, at 88.

n5. After two weeks of this "co-ed monastery" (as one TV reporter described our Albany life), we also excitedly anticipate returning home. In Cardozo''s day, Albany Sessions were three weeks long (p. 137).

n6. On occasion, the Court of Appeals dispenses justice even more swiftly, particularly when a judge who heard an appeal will be leaving the Court at year end. See, e.g., Meinhard v Salmon, 164 N.E. 545 (N.Y. 1928) (argued December 4 and handed down December 31, 1928); Berkey v Third Ave. Ry. Co., 155 N.E. 58 (N.Y. 1926) (argued December 3 and handed down December 31, 1926). Cardozo worked quickly - and alone. (Court of Appeals judges had no law clerks.) Cardozo continued to work with remarkable efficiency when he joined the United States Supreme Court. He would receive his case assignments by messenger on Saturday nights, begin work immediately, and usually had a draft ready for typing on Monday morning. "After Cardozo suffered a heart attack in the summer of 1935, [Chief Justice] Hughes delayed sending him assignments until Sunday morning to give him more time to rest" (p. 481).

n7. Cardozo would find even less change at the Spanish and Portuguese Synagogue, which for him "was not merely a house of religion," but "was also a symbol of the heritage of the Cardozo-Nathan family and of his membership in the Sephardic community" (p. 69). Cardozo was an active participant until just after his Bar Mitzvah, when his attendance diminished, although always he retained his Jewish identity and ties to the congregation (p. 24). Cardozo''s most notable contribution to synagogue history was speaking passionately against mixed seating for men and women when the congregation moved to its current home on Central Park West in New York City (p. 70). Thus, owing to the persuasive powers of the former Chief Judge, the current Chief Judge sits upstairs, in the women''s section.

n8. Kaufman''s is the third Cardozo book to appear during this decade. Judge Richard A. Posner''s Cardozo: A Study in Reputation was published in 1990, and Professor Richard Polenberg''s The World of Benjamin Cardozo appeared in 1997.

n9. It is likely impossible to produce a work of this magnitude without conveying some personal viewpoint on the subject. Although the touch is a light one, there is no question about how Professor Kaufman feels about Benjamin Cardozo - "he was a good man with extraordinary talents" (p. 3).

n10. John T. Noonan, Jr., Sitting in Judgment, N.Y. Times Book Rev., June 21, 1998, at 7.

n11. Kaufman''s sources include Court of Appeals internal reports never before made available to the public. Professor Kaufman made several trips to Albany, during which he read, and made excellent use of, the more than 600 remaining Cardozo reports. Those reports display Cardozo''s excellent relations with his colleagues (pp. 140-43) and confirm other Kaufman conclusions, such as Cardozo''s deference to the legislature (p. 252).

n12. Curiously (perhaps not so, given the obsessive privacy of Cardozo, the relative isolation of judges generally, and the dearth of judicial biographies), there were until recently few books about Cardozo, no doubt prompting Frankfurter''s suggestion in 1957 that Kaufman write one. Earlier books on Cardozo include George Hellman, Benjamin N. Cardozo: American Judge (1940), Beryl Harold Levy, Cardozo and Frontiers of Legal Thinking (1938), and Joseph P. Pollard, Mr. Justice Cardozo: A Liberal Mind in Action (1935).

n13. The color of Cardozo''s eyes was actually an open issue. Learned Hand described them as "blue" (p. 483), Arthur Corbin as "dark" (p. 204). Cardozo claimed that they were hazel (p. 688 n.33).

n14. See note 63, below, for Kaufman''s description of a recording of a speech given by Cardozo.

n15. On both sides of his family, Cardozo could trace his American roots to colonial times (pp. 6, 9).

n16. From the chapters on his youth, three conclusions emerge: he was well educated, he loved learning, and he worked hard. To enter Columbia University, Cardozo - then 15 years old - had to pass a five-day examination covering, among other things, English, Latin, and Greek grammars; Greek and Latin prosody; Greek, Latin, and English composition; modern geography and ancient history; and arithmetic, algebra, and geometry (pp. 25-26). Latin and Greek (and then German or French) readings were required during most of his four-year undergraduate program (p. 28). At 19, he graduated near the top of his class, voted by his classmates "cleverest" and second "most modest" (p. 38). Then, in addition to two years at the Columbia Law School, he enrolled as a special student in the Faculty of Philosophy and pursued a public law program at the School of Political Science, earning a Master of Arts degree in June 1890 (p. 45). There he learned to look to the spirit as well as the letter of the law (p. 45).

n17. Kaufman''s comprehensive chapters establish that Cardozo was a tough, resourceful lawyer, skilled in both trials and appeals. As a lawyer, Cardozo was a hit from day one. In his first year at the Bar - at the age of 21 - he argued and won four cases on appeal to the state''s intermediate appellate courts and won one and lost one in the Court of Appeals (p. 55). He argued 24 appeals in his first five years as a lawyer (p. 61). His busy, lucrative law practice - largely devoted to commercial law - appears to have been drawn mainly from the Jewish business and legal community (p. 98). As Kaufman observes, on the bench Cardozo had the style of a lawyer turned judge (p. 316), and was at his best deciding commercial cases, which had been the backbone of his law practice (p. 337).

n18. Then responsible for the support of the household, Cardozo declined for financial reasons (pp. 100-01).

n19. At the time, the New York State Constitution authorized the governor to appoint up to four trial court judges to sit on the Court of Appeals to assist with case backlogs (p. 614 n.47).

n20. Cardozo''s appointment occurred more despite demographics than because of them: he was the second Jew and a third New Yorker on the Court. In the words of Professor Zechariah Chafee: "President Hoover ignored geography and made history" (p. 467 (quoting Zechariah Chaffee, Mr. Justice Cardozo, Harper''s, June 1932, at 34)).

n21. Reading, not travel or other such diversions, was Cardozo''s "life experience." He was a voracious reader, and had a "virtually photographic" memory (p. 30). "Reading was one of the great pleasures of his life, and there were not many others" (p. 158). Apart from the habit and pleasure of the experience, he obviously read to learn, as reflected in the breadth of the material cited in his writings. For example, in The Nature of the Judicial Process, Cardozo quotes a broad range of Continental and American jurisprudes, often in their native tongues, including Munroe Smith''s Jurisprudence (p. 23 n.16), Michoud''s La Responsibilite de l''etat a raison de ses agents (p. 46 n.44), and Ehrlich''s Grundlegung der Soziologie des Rechts (p. 104 n.14).

n22. In Learned Hand''s words: "Very few have ever known what went on behind those blue eyes" (p. 568). Cardozo never married, and his most significant personal relationship was with his sister Ellen (Nellie). With the death of his mother when he was nine (p. 21), and the death of his father only six years later (p. 27), his close relationship to Nellie - 11 years his senior - is hardly surprising. Cardozo''s devotion to Nellie was intense and complete, although little concrete evidence regarding this relationship survives. After Nellie''s death, Cardozo destroyed most of his letters to her, and his remaining personal papers were destroyed, ostensibly at his instruction, after his death (p. 621 n.5). His one extant letter to her, "written in 1916 from the train on the way to Albany," is extravagantly affectionate and "filled with concerns for her health" (p. 147).

n23. In addition to the early deaths of his parents (pp. 21, 27), and sister Grace (p. 26), Cardozo''s surviving sisters (one of them his twin) suffered chronic illnesses (pp. 11, 64, 65); his five siblings all predeceased him, leaving no children (p. 65).

n24. For example, his law office staff loved him (pp. 103-04); his housekeeper of 46 years said he was "the most unique and lovable soul I have ever known" (p. 183); he was kind to Albany hotel personnel (p. 138); and everybody at the Court of Appeals "adored" him (p. 166).

n25. Grant Gilmore, The Ages of American Law 75 (1977).

n26. He was "devoted to combing his hair just right," and in later years, a barber came to his home every Friday (p. 184). He owned 15 identical black suits, custom made to hide a bit of a hump on his back (p. 184), and was known for always wearing his coat, tie, and stiff shirt with high linen collar, even when the temperature hit 100 degrees (p. 143). A family photograph of Ben and Nellie in the summer at Allenhurst, New Jersey shows him in a relaxed, casual, vacation mode - bow tie, sport jacket, and every hair in place (photo of Ben and Nellie in the summer at Allenhurst following p. 113).

n27. Kaufman quotes personal correspondence in which Cardozo expresses revulsion at the idea of interracial sexual relationships (pp. 154-55), and notes evidence of stereotypical thinking about women in several of Cardozo''s case reports (pp. 232-33, 403-04). It is, from my point of view, marvelous that a woman now occupies his seat - indeed, two of the seven judges on his court today are women - proof of Cardozo''s observation in another context: "What is good in [the work of a judge] endures. What is erroneous is pretty sure to perish." Benjamin N. Cardozo, The Nature of the Judicial Process 178; see also infra p. 1042.

n28. Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928).

n29. For example, Kaufman explains the award of costs against Mrs. Palsgraf in Palsgraf v. Long Island R.R. Co., 162 N.E. 99 (N.Y. 1928) (p. 656 n. 43), which some have criticized, see, e.g., John T. Noonan, Jr., Persons and Masks of the Law 136-39 (1976); he demonstrates that Cardozo did not in fact improperly participate in an American Law Institute discussion while Palsgraf was sub judice (pp. 286-95); and he notes that although Professor Konefsky discloses many flaws in Cardozo''s decision in Allegheny College v. National Chautaugua Bank, 159 N.E. 173 (N.Y. 1927), see Alfred Konefsky, How to Read, or at Least Not Misread, Cardozo in the Allegheny College Case, 36 Buff. L. Rev. 645 (1987), "he had considerably more time to analyze the opinion than Cardozo had to write it" (p. 663 n.74). Kaufman also answers criticisms of Cardozo''s analysis in H.R. Moch Co. v. Rensselaer Water Co., 159 N.E. 896 (N.Y. 1928) (p. 305) and De Cicco v. Schweizer, 117 N.E. 807 (N.Y. 1917) (pp. 327-29).

n30. "An ordinary judge often rises to the heights in a great case; it takes the great jurist to achieve the significant result through a scattering of ordinary cases." Walton H. Hamilton, Cardozo the Craftsman, 6 U. Chi. L. Rev. 1, 21 (1938). See also Posner, supra note 8, at 47 ("To see how ordinary a case Palsgraf would have been in the hands of an ordinary judge, one has only to read the majority and dissenting opinions in the intermediate appellate court. Cardozo could make silk purses out of sow''s ears - a gift vouchsafed to few judges.").

n31. Cardozo himself believed that his work in New York was his greatest contribution. In Albany, Cardozo wrote, he "really accomplished something that gave a new direction to the law," but in Washington, he had to be satisfied if he "accomplished something by his vote" (p. 493). Moreover, the brevity of Cardozo''s service on the Supreme Court limited his impact. See David N. Atkinson, Mr. Justice Cardozo: A Common Law Judge on a Public Law Court, 17 Cal. W. L. Rev. 257, 257 n.1 (1981) ("Justice Cardozo was a great jurist, not a great Supreme Court Justice. He simply did not remain very long on the Supreme Court."). Some, however, believe that he did well with the time he had. See, e.g., Richard D. Friedman, On Cardozo and Reputation: Legendary Judge, Underrated Justice?, 12 Cardozo L. Rev. 1923, 1932 (1991) (reviewing Posner, supra note 8) ("Cardozo''s was one of the greatest short tenures on the Court in its history ....").

n32. See Posner, supra note 8, at 13; G. Edward White, Tort Law in America 123 (1980).

n33. Cardozo believed in judicial innovation, but he also respected the role of the legislature in the democratic process. For example, Cardozo firmly applied the doctrine of immunity for charities and municipalities, see, e.g., Hamburger v. Cornell Univ., 148 N.E. 539, 541-42 (N.Y. 1925); Schloendorff v. Society of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914), but personally thought it "foolish, antiquated, unjust, and [that it] should be abolished." He felt, however, that change had to be left "to the clumsy process of legislation" (p. 252). What is ironic is that, decades later, it was the Court of Appeals itself that overturned the rule. See Bing v. Thunig, 143 N.E.2d 3, 9 (N.Y. 1957).

n34. Posner, supra note 8, at 19 (quoting Paul A. Freund, Foreword: Homage to Mr. Justice Cardozo, 1 Cardozo L. Rev. 1, 2-3 (1979)) (internal quotation marks omitted).

n35. 111 N.E. 1050 (N.Y. 1916).

n36. 152 Eng. Rep. 402, 404 (1842).

n37. See Thomas v. Winchester, 6 N.Y. 397, 397 (1852).

n38. Posner, supra note 8, at 109.

n39. See MacPherson, 217 N.E. at 1055 (Bartlett, C.J., dissenting).

n40. Benjamin N. Cardozo, Jurisdiction of the Court of Appeals of the State of New York 11 (2d ed. 1909) (quoting Reed v. McCord, 54 N.E. 737, 738 (N.Y. 1899)).

n41. Commentators do not always appreciate the weight of the judge''s responsibility, or the difficulty of finding exactly the right balance, or the pressures of time. Professor Kaufman does:

As a working judge, Cardozo avoided large questions of doctrine most of the time. It was hard enough to get agreement in the court on a difficult case within the short time in which he and his colleagues had to decide it before moving on to the next one... Sometimes it was apparent that he was unsure how he would decide the next relevant case, didn''t want to commit himself in advance, and therefore was careful to explain the current case in a way that left himself and the court flexibility for the next one. Cardozo''s candor consisted in trying to explain the present result without encumbering the future. It was a difficult job, and, on the whole, he did it well.

(pp. 446-47).

n42. Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals 434 (1960).

n43. See MacPherson, 217 N.E. at 1055 (Bartlett, C.J., dissenting).

n44. See id. at 1056-57.

n45. See id. at 1055.

n46. See id. at 1057.

n47. Only Judges Hiscock, Chase, and Cuddeback concurred in Cardozo''s opinion. Judge Hogan concurred only in the result, the Chief Judge dissented, and Judge Pound did not vote at all. See MacPherson, 111 N.E. at 1057.

n48. Cardozo began with an 1852 New York case, Thomas v. Winchester, 6 N.Y. 397 (1852), which had carved an exception to Winterbottom to create liability to a remote purchaser of a falsely labeled poison. See MacPherson, 111 N.E. at 1051. He then traced the application of Thomas to a widening array of products causing human misery: collapsing scaffolds, exploding coffee urns, and bursting soda bottles. See id. at 1052. The "principle" of Thomas grows with each application, until the exception - skillfully generalized - swallows the rule. See id. at 1053.

n49. See MacPherson, 111 N.E. at 1053.

n50. Id.

n51. Kaufman is quoting Benjamin N. Cardozo, Law and Literature, 14 Yale Rev. 699 (July 1925), reprinted in Benjamin Cardozo, Law and Literature, in Law and Literature and Other Essays and Addresses 3, 9 (Harcourt, Brace & Company 1986 (1931)) [hereinafter Cardozo, Law and Literature]. Internal quotation marks have been omitted.

n52. Benjamin N. Cardozo, The Growth of the Law (1924), reprinted in Selected Writings of Benjamin Nathan Cardozo 186, 225 (Margaret E. Hall ed., 1947).

n53. Cardozo, Law and Literature, supra note 51, at 32-33.

n54. Id. at 32.

n55. Kaufman quotes Jerome Frank''s anonymously published view that Cardozo''s style was "awkward" and "sometimes ornate, baroque, rococo," his ornaments at times "annoyingly functionless," and his metaphors "elaborate" (pp. 448-49 (quoting Anon Y. Mous, The Speech of Judges: A Dissenting Opinion, 29 Va. L. Rev. 625, 629-34, 639-41 (1943))) (internal quotation marks omitted). On the other side, Professor Zechariah Chafee, another Cardozo contemporary, found that "Cardozo possesses one of the best prose styles of our times" (p. 449 (quoting Zechariah Chafee, Jr., Mr. Justice Cardozo, Harper''s, June 1932, at 40)) (internal quotation marks omitted).

n56. Coler v. Corn Exch. Bank, 164 N.E. 882, 884 (N.Y. 1928).

n57. Schloendorff v. Society of N.Y. Hosp., 105 N.E. 92, 93 (N.Y. 1914). Schloendorff, among Cardozo''s very first opinions, suggests that he brought this literary technique to the bench with him. Kaufman describes one case Lawyer Cardozo took over from another lawyer, for appeal to the Court of Appeals. Cardozo made few changes in the brief that had earlier been filed. But one of his edits was telling. The previous lawyer had written, "There is no inconsistency between these two positions; and the plaintiffs are entitled to the benefit and the protection of them both" (p. 617 n.14 (quoting Brief for Respondents in the Appellate Division at 25, Critten v. Vredenburgh, 151 N.Y. 536 (1897) (on file with the Association of the Bar of the City of New York)) (internal quotation marks omitted)). Kaufman does not suggest that Cardozo wrote stylishly as a lawyer, but in this instance Cardozo left a fingerprint. He changed the latter part of the sentence to read, "and to the benefit and protection of both, the plaintiffs are entitled" (p. 617 n.14 (quoting Brief for Respondents in Court of Appeals, supra, at 29.) (internal quotation marks omitted)).

n58. See Cardozo, Law and Literature, supra note 51, at 7-8 ("There is an accuracy that defeats itself by the over-emphasis of details... The picture cannot be painted if the significant and the insignificant are given equal prominence. One must know how to select.").

n59. Wood v. Lucy, Lady Duff-Gordon, 118 N.E. 214, 214 (N.Y. 1917).

n60. See Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 99 (N.Y. 1928).

n61. See Jacob & Youngs, Inc. v. Kent, 129 N.E. 889, 890 (N.Y. 1921).

n62. Cardozo, supra note 40, at 11 (quoting Reed v. McCord, 54 N.E. 737, 738 (N.Y. 1899)).

n63. Kaufman is quoting Arthur L. Corbin, The Judicial Process Revisited: Introduction, 71 Yale L.J. 195, 197-98 (1961). Internal quotation marks have been omitted. Corbin mentions Cardozo''s eyes, hair, and smile, but curiously not - as one might expect after a two-hour reading - his voice. Much to my surprise - and his own - Kaufman reports that he "was blown away" after hearing a tape of Cardozo at a celebratory dinner:

I might have been listening to William Jennings Bryan himself. Cardozo was an orator, in the style of the 19th century. In one minute, I had learned why he was a captivating speaker, and I understood a good deal more about his success at the bar. I also ended up rewriting portions of the book.

Andrew L. Kaufman, Adventures of a Biographer: Professor Kaufman Recounts his Forty-Year Pursuit of Cardozo, Harv. L. Bull., Summer 1998, at 4, 9-10.

n64. Benjamin N. Cardozo, The Nature of the Judicial Process 10 (1921).

n65. Or worse. As Professor Gilmore puts it, "Cardozo''s hesitant confession that judges were, on rare occasions, more than simple automata, that they made law instead of merely declaring it, was widely regarded as a legal version of hardcore pornography." Grant Gilmore, The Ages of American Law 77 (1977). Cardozo initially resisted publication of his manuscript, protesting that "if it were published, I would be impeached." Corbin, supra note 63, at 198 (internal quotation marks omitted).

n66. Cardozo, The Nature of the Judicial Process, supra note 21, at 20.

n67. Id. at 30-31.

n68. Id. at 83.

n69. Id. at 89.

n70. Freund, supra note 34, at 4 (quoting Justice Frankfurter). It is unlikely that Frankfurter expected that the business of deciding cases could be reduced to a recipe. As Professor Freund relates, "Whenever Frankfurter was asked how he weighed the elements of history, precedent, custom, and social utility in reaching a decision, he was likely to reply, "When Velazquez was asked how he mixed his paints, he answered, "With taste."''" Id.

n71. In an address to the New York State Bar Association eleven years after the Storrs Lectures, Cardozo specifically distanced himself from the more radical Legal Realists who "exaggerated the indeterminacy, the entropy, the margin of error, [and] treated the random or chance element as a good in itself and a good exceeding in value the elements of certainty and order and rational coherence ...." Benjamin N. Cardozo, Jurisprudence, reprinted in Selected Writings of Benjamin Nathan Cardozo, supra note 52, at 30 (1975 reprint). Kaufman reports that Cardozo''s talk infuriated Jerome Frank, who expressed his views in a sizzling 31-page letter to Cardozo, complete with a 31-page appendix (pp. 459-60).

n72. See Cardozo, The Nature of the Judicial Process, supra note 21, at 136-37 ("Insignificant is the power of innovation of any judge, when compared with the bulk and pressure of the rules that hedge him on every side... All that the method of sociology demands is that within this narrow range of choice he shall search for social justice.").

n73. See id. at 112 ("One of the most fundamental social interests is that law shall be uniform and impartial... Therefore in the main there shall be adherence to precedent.").

n74. Id. at 113. See generally Judith S. Kaye, The Human Dimension in Appellate Judging: A Brief Reflection on a Timeless Concern, 73 Cornell L. Rev. 1004, 1015 (1988) ("The danger is not that judges will bring the full measure of their experience ... to bear in the difficult process of resolving the cases before them. It seems to me that a far greater danger exists if they do not.").

n75. Hynes v. N.Y. Cent. R.R. Co., 131 N.E. 898, 900 (N.Y. 1921).

n76. Jacob & Youngs, Inc. v. Kent, 129 N.E. 889, 891 (N.Y. 1921). The opinion, handed down just three weeks before the first Storrs Lecture, exemplified the clash between logic and certainty, and the demands of justice in individual cases (pp. 354-55).

n77. See, e.g., People ex rel. Karlin v. Culkin, 162 N.E. 487, 492 (N.Y. 1928) ("The argument from history is reinforced by others from analogy and policy."); Hynes, 131 N.E. at 900 ("We think that considerations of analogy, of convenience, of policy, and of justice, exclude [the plaintiff] from the field of the defendant''s immunity ....").

n78. Kaufman observes: "When it came to enforcing promises in the commercial context, he looked to contemporary commercial practice for enlightenment. When it came to enforcing promises relating to marriage or charitable subscriptions, he relied heavily on general social preferences and specific governmental policies" (p. 359).

n79. Thus even while fundamentally revising New York law in MacPherson, Cardozo stressed the continuity of the underlying principles: "Precedents drawn from the days of travel by stagecoach do not fit the conditions of travel to-day. The principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization require them to be." MacPherson v. Buick Motor Co., 111 N.E. 1050, 1053 (N.Y. 1916).

n80. See, e.g., Carter v. Carter Coal Co., 298 U.S. 238, 327 (1936) (Cardozo, J., dissenting in Nos. 636, 649, and 650, and in No. 651 concurring in the result) (rejecting a Commerce Clause analysis that focused on whether the effect on interstate commerce was "direct" or "indirect" with the comment that "a great principle of constitutional law is not susceptible of comprehensive statement in an adjective").

n81. For example, his opinion in Palko v. Connecticut, 302 U.S. 319, 322-28 (1937), employed an issue-by-issue approach to the question of incorporation of the Bill of Rights into the Fourteenth Amendment. In Palko, Cardozo found that the right in question - the Fifth Amendment''s immunity from double jeopardy - was not "implicit in the concept of ordered liberty" and thus not binding upon the states. Id. at 325. His conclusion was later overruled in Benton v. Maryland, 395 U.S. 784, 793-96 (1969).

n82. Cardozo voted to sustain a number of state and federal regulatory efforts, including the Minnesota Mortgage Moratorium Act, New York''s Milk Control Act, the "hot oil" provisions of the National Industrial Recovery Act (in dissent), the Railroad Retirement Act (in dissent), the Agricultural Adjustment Act (in dissent), and the Guffey Coal Act (in dissent) (pp. 510-13, 532-33). Kaufman makes clear, however, that Cardozo''s review of economic legislation was not toothless. If he felt that reasonable limits had been exceeded, he did not hesitate to say so. For example, Kaufman discusses Cardozo''s opinion in W.B. Worthen Co. v. Kavanaugh, 295 U.S. 56 (1935), which struck down an Arkansas statute that impaired the rights of secured creditors (pp. 503-04). Similarly, in his concurring opinion in A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 551-55 (1935), Cardozo agreed that the National Recovery Administration''s Live Poultry Code should be invalidated (pp. 511-12).

n83. Judge Friendly asks: "Indubitably Cardozo''s epoch was one of greatness, which he helped make all the greater ... Did Cardozo''s death in 1938 coincide with the beginning of a downward slope? A good case can be made that it did." Henry J. Friendly, Reactions of a Lawyer - Newly Become Judge, 71 Yale L.J. 218, 235 (1961).

n84. See Posner, supra note 8, at vii-viii.

n85. Cardozo, The Nature of the Judicial Process, supra note 21, at 178.

n86. See Posner, supra note 8, at 76-79.

n87. See id. at 83-86, 90-91.

n88. See id. at 86-88.

n89. See Guido Calabresi, A Common Law for the Age of Statutes 1 (1982).

n90. See generally Judith S. Kaye, State Courts at the Dawn of a New Century: Common Law Courts Reading Statutes and Constitutions, 70 N.Y.U. L. Rev. 1 (1995) (discussing the interaction between state courts and legislatures).

n91. 166 N.E. 173 (N.Y. 1929).

n92. See Morgan v. New York, 685 N.E.2d 202, 206-10 (N.Y. 1997).

n93. 159 N.E. 896 (N.Y. 1928).

n94. See Strauss v. Belle Realty Co., 482 N.E.2d 34, 35-38 (N.Y. 1985).

n95. 233 N.Y. 236 (1922).

n96. 174 N.E. 441 (N.Y. 1931).

n97. See Ossining Union Free Sch. Dist. v. Anderson, 539 N.E.2d 91, 93-95 (N.Y. 1989).

n98. See Credit Alliance Corp. v. Arthur Andersen & Co., 483 N.E.2d 110, 114-20 (N.Y. 1985).n99. See Palka v. Servicemaster Management Servs. Corp., 634 N.E.2d 189, 192-95 (N.Y. 1994).

n100. 105 N.E. 92 (N.Y. 1914); see also supra note 33.

n101. 143 N.E.2d 3, 9 (N.Y. 1957); see also supra note 33.

n102. 367 U.S. 643, 659 (1961).

n103. 150 N.E. 585 (N.Y. 1926).

n104. See Mapp, 367 U.S. at 659-60.

n105. Once again, statistics supply some evidence of Cardozo''s continuing relevance. Kaufman reports that between 1960 and 1994, some 156,637 copies of The Nature of the Judicial Process were sold - over six times as many copies as were sold during the book''s first 39 years of sales (p. 204). Posner reports that between 1966 and 1988, the book was cited an average of 28.4 times a year in journals tabulated by the Social Sciences Citation Index - making it the third most often cited pre-1960 work of jurisprudence (trailing only Holmes''s The Common Law and The Path of the Law). See Posner, supra note 8, at 20.

n106. See William J. Brennan, Jr., Reason, Passion and "The Progress of the Law", Address Before the Association of the Bar of the City of New York (Sept. 17, 1987) in 42 Record of the Assn. of the Bar of the City of New York 948, 951 (1987).

n107. See, e.g., David E. Rosenbaum, Emotional Issues Are the 1988 Battleground, N.Y. Times, Nov. 4, 1988, at A1 (reporting then-presidential candidate George Bush''s pledge to name judges who "will not legislate from the bench"); Tony Snow, Congressman: Judges Are Not Lawmakers, The Detroit News, Mar. 17, 1997, at 9A (reporting one Congressman''s proposal to "scrub out those [federal judges] who insist on creating laws rather than interpreting old ones").

n108. Cardozo, The Nature of the Judicial Process, supra note 21, at 141 (quoting 2 Francois Geny, Methode d''Interpretation et Sources en Droit Positif 200, at 303 (translation by Cardozo)). Some may call this statement platitudinous. I think Cardozo provided a sufficient answer to this charge in an essay he wrote while a student at Columbia College: "Most of our so-called noble thoughts have been at bottom pretty prosy and commonplace sentiments. It is the vitalizing power of style that lends them force and loftiness, and imparts a semblance of novelty to notions as old as man himself." Benjamin N. Cardozo, The Moral Element in Matthew Arnold, reprinted in Selected Writings of Benjamin Nathan Cardozo, supra note 52, at 70.

n109. Kaufman is quoting Berkey v. Third Ave. Ry. Co., 155 N.E. 58, 61 (N.Y. 1926).

n110. Kaufman is quoting Cardozo, The Nature of the Judicial Process, supra note 21, at 51.

n111. Kaufman is quoting Wagner v. International Ry. Co., 133 N.E. 437, 437 (N.Y. 1921).

n112. Kaufman is quoting Ultramares Corp. v. Touche, 174 N.E. 441, 445 (N.Y. 1931).

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