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Cardozo: A Study in Reputation.


by Richard A. Posner (Chicago: University of Chicago Press, 1990)

Benjamin Cardozo began establishing himself as a leading judicial figure in the common law world when, in 1913, he was first elected to the New York Supreme Court. He rose to that state's Court of Appeals in 1917, becoming Chief Judge in 1927. His lustre grew when President Hoover appointed him to the United States Supreme Court in 1932. He resigned from the bench in 1938 and died later the same year. In the development and rewriting especially of private law doctrine, Cardozo was masterful. (1) His published legacy also included an extensive body of extrajudicial material.

During and after his lifetime, Cardozo was a judicial luminary revered by many lawyers, academics, and fellow judges. His writing on and off the bench was impressively learned, philosophically sharp, and distinguished by a style that has been characterized variously as literary or poetic. To Cardozo we owe numerous sparkling aphorisms. "Danger invites rescue." (2) "Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end up by enslaving it." (3) "If liability for negligence exists, a thoughtless slip or blunder ... may expose accountants to a liability in an indeterminate amount for an indeterminate time to an indeterminate class." (4) He appears to have been fastidious, uncommonly kind, moderate, and eloquent. He exuded integrity and utterly dedicated himself to his calling. He has often been held up to law students as a paragon of professional craft and deportment. (5)

Against this "hagiographical" tradition have been assessments that are not so approving. Some of them have been dismissive. His critics have pointed out that Cardozo's decisions could be oversubtle, even casuistical. They are selective in recounting the salient facts. Occasionally they manipulate the existing precedents and principles. (6) Moreover, it has been argued that they are not, from an ideological perspective, uniformly "liberal". Under his direction, the path of the common law could become tortuous, even though Cardozo viewed himself as upholding the "logic" and coherence of the common law system. (7) Moreover, some commentators have belittled Cardozo for cultivating a style that often proved baroque, precious, and quaintly florid.

For his 1989 Cooley Lectures at Michigan, Judge Richard Posner attempted to reassess Cardozo's reputation, particularly in light of the widely disparate opinions that have been' offered. Cardozo: A Study in Reputation is a published version of those lectures. Posner was a professor of law at the University of Chicago before his appointment to the Seventh Circuit Court of Appeals in 1982. Although best known for his analysis of law from an economic point of view, Posner has lately written texts on legal theory generally, and on law and literature. (8) He has brought his various talents and his judicial experience to bear in providing a fresh look at Cardozo's achievements. In the process he investigates the very nature of an eminent judge's reputation: how it is formed, how it might be quantified, and what difference it makes for the evolution of the common law.

Posner's book is not a full-scale biography. That project has been undertaken by others. (9) Nor is it a complete intellectual portrait. Only about two dozen of Cardozo's decisions are discussed. Posner briefly traces Cardozo's career, but only in sufficient detail to set the background for his analysis of why Cardozo became a towering figure in the law. According to Posner, a primary reason for this was Cardozo's rhetorical skills. These included not just his flair for turning a lively and memorable sentence that sums up the fundamental legal principle at the heart of a case. Also noteworthy was the way Cardozo structured his judgments, so that the logic of the previous common law was brought to the surface and made to justify the incremental, progressive change that Cardozo favoured. He was neither a diehard conservative, nor a radical judge in service of a particular social program. These features made Cardozo greatly influential in his day. Posner's evaluation of Cardozo along these lines is far from novel. Other writers have emphasized the extent to which Cardozo, like Mansfield, Kent, and Story, used his great store of learning to adapt the law to contemporary concepts and conditions. (10)

Another, reason for Cardozo's eminence was his commitment to changing the law through internal, incremental processes. Posner adroitly exposes the subtle methods by which Cardozo was able to re-channel the law, for example, by abolishing such barriers to liability as the requirement of privity in products liability cases. (11) This change was not revolutionary: precedents from within and outside New York pointed in the direction of removing the concept traditionally imposed by contract law. Cardozo's genius lay in accomplishing his pragmatic goal while treating precedents respectfully. He was scrupulous in pointing out that one of his decisions represented "... no seismic innovation. The edifice of justice stands, its symmetry, to many, greater than before." (12) This aspect of his reputation was enhanced by those cases where Cardozo refused to let his reasoning be guided by "practical politics", the phrase used by his colleague, Judge Andrews, in Palsgrqf to distinguish his approach from Cardozo's. (13)

Posner also ascribes Cardozo's reputation to the state court on which he sat for fifteen years. During this period, the New York Court of Appeals was the most important commercial tribunal in the United States. The court heard a great volume of tort and contract cases as transportation and business expanded in that state. Cardozo had ample opportunity to deal with disputes which demanded that the law recognize and entrench or, in some cases, revise commercial practices.

Another factor contributing to Cardozo's stature was the quality of his extrajudicial writing. The foremost example of this was The Nature of the Judicial Process. (14) In this book, Cardozo promised to expose the different methods actually employed by judges to decide a case. Posner acknowledges that, while the book contains an admirable statement of some basic precepts of legal realism, it now seems dated and stale. (15) The dragon of "formalism" had perhaps already been slain by the time Cardozo took up the cudgels. The book's strength lies in the elegance with which Cardozo expounds the methods of "philosophy", "history", and "sociology". His insights on each perspective made Cardozo the darling of law professors of the 1920's. Looking back, Posner, as have other judges who read the book in search of instruction on how to perform their judicial duties, finds the discussion disappointing.

The most innovative part of Posner's discussion is his attempt to reduce the vagueness that surrounds talk of "reputation". While much of his analysis is devoted to Cardozo's "normative" reputation, Posner has tried also to introduce an empirical element into our understanding of why some judges rate more highly than others. "Citation studies" have been used in the social sciences to determine the influence attained by writers or their work. Few comparable systematic studies have been used to ascertain influence in the legal profession. The data relied on by Posner derive from subsequent case law and from law review articles. He investigates the number of times that Cardozo's opinions were cited by courts in New York and in other jurisdictions. He also draws on statistics that show the frequency with which Cardozo is cited in law reviews during the period 1982 to 1989, when access to computerized materials makes such a count feasible. Another source of comparative data is the relative frequency with which Cardozo's opinions crop up in law school casebooks. On all these dimensions, Posner's statistics confirm that Cardozo was an unusually influential figure, even before his elevation to the Supreme Court.

Not all of Cardozo's cases show him in the best light. Posner suggests that, in such cases as Hynes v. N.Y. Central R. Co., (16) Cardozo's judgment ranks more highly for its "aesthetic" virtuosity than for its "accuracy". In addition, some of Cardozo's conclusions were plainly wrong and were subsequently reversed. For example, in Ultramares v. Touche (17) the Supreme Court dealt with a suit against a firm of accountants which had conducted an audit to certify the financial soundness of a client. The pivotal issue was whether the defendants owed a duty of care to the plaintiffs who had entered into a transaction with the client in reliance on the auditor's report. Cardozo held that the defendants owed no such duty to the plaintiffs in this case. His language is striking, but the result has been rejected both in later U. S. cases and in Canada. (18)

Posner does not attempt a thorough examination of Cardozo's philosophy of law. Instead, the reader is referred to The Nature of the Judicial Process as the primary source for Cardozo's views. To supplement Posner's regrettably brief treatment, it is necessary to resort to Edwin Patterson's discussion, which appeared in 1939, or to the more contemporary analysis by Edgar Bodenheimer. (19) While Posner repeatedly describes Cardozo as adopting a "pragmatic" point of view, these references fail to disclose or illuminate the full range or texture of the assumptions, conceptions, and policies that underpinned Cardozo's judicial practice. As an aside, it should also be mentioned that what Posner has to say about "pragmatism" perhaps reinforces Richard Rorty's characterization of that theory as "banal in its application to law". (20) Posner does not attempt to defend Cardozo against Ronald Dworkin's general condemnation of pragmatism, but does note correctly that Cardozo represents an important model for Dworkin's own recommended approach to problems of jurisprudence.21

Posner's re-evaluation of Cardozo emphasizes the usefulness of treating some judges as key cultural figures and as important writers contributing to the temper of their times. In this sense, Posner's book coincides with recent discussion of other leading American judges, such as Holmes or Learned Hand. (22) Posner's treatment also purports to be "critical", though he does not intend this to mean polemical or political. Rather, in his attempt at evaluating Cardozo he uses techniques from literary interpretation and social science, as well as doctrinal analysis. Has Posner indeed created a fresh, exciting new genre of academic writing? Although he has aimed at forging a new type of monograph, it is debatable whether Posner has achieved his goals. Many of his statements of interpretation, appreciation, and criticism are sketchy or merely suggestive. The attempt to outline a respectable "social scientific" method, predominantly involving frequency of citations, offers a meagre basis by which to rank the relative "greatness" of a judge. The method is crude and calls for further normative analysis of the numerical results that, by themselves, reveal little. There is no guarantee of objectivity here.

How has Cardozo's reputation filtered into Canadian law or judicial thinking? One manifestation of such influence has been Cardozo's comment on the significance of freedom of expression. In Irwin Toy, Chief. Justice Dickson invoked Cardozo to the effect that free expression is "the matrix, the indispensable condition of nearly every other form of freedom". (23) This statement has often been bracketed with the similar dictum of Justice Rand in Switzman v. Elbling. (24) The association of Cardozo with Ivan Rand, in this context and in others, goes beyond mere coincidence, since Rand has often been recognized as an intellectual heavyweight and distinguished stylist in his own right. Cardozo's authority has also been cited in Canada in numerous tort, contract, and trusts cases. When teaching corporate law, I have found Cardozo's pronouncements particularly useful when trying to convey the high-minded tenor and exacting standards of the courts in, for example, the context of fiduciary duties owed by business partners to one another. (25)

Personally, intellectually, and professionally, Posner finds Cardozo an attractive figure. Cardozo's tempermental balance and restraint appeal to Posner's conception of what a judge ought to be. While Cardozo did not elaborate a coherent legal philosophy that receives its full exposition in a single treatise, his judicial writing displays an array of qualities admired by Posner: vivid and dramatic recitations of the factual background; pithy statements of the relevant cases; deft interweaving of academic commentary; and summaries of policy that often, as excerpts, have become marmoreal standards in the literature of the law.

In the end, Posner's monograph saves Cardozo's reputation from those who treat him as an unexamined saint, and also from the critics who have tried to depose Cardozo from the pedestal that the man himself, in his modesty, certainly would have disdained. Along the way, Posner has made an interesting attempt to adopt socio-empirical methods in making a "critical" assessment of his subject's place in American law. Though this quantitative material is supposed to add an "objective" element to the general debate about how judges rank, the most fascinating part of Posner's treatment remains his sensitive interpretation of Cardozo's own words. One might have feared, before reading the book, that Posner would simply portray Cardozo as engaged in "proto-economic" analysis, or in legal pragmatism, both of which reflect Posner's own predilections. This fear is dispelled by Posner's actual discussion, which does not bend Cardozo to such narrow purposes.

Richard W. Bauman

Faculty of Law

University of Alberta

(1) During his brief tenure on the U. S. Supreme Court, Cardozo adumbrated his understanding of how a hierarchy of values was contained in the Constitution. This was the major area in which his constitutional opinions proved influential: see John T. Noonan, Jr., "Ordered Liberty: Cardozo and the Constitution" (1979) 1 Cardozo L. Rev. 257.

(2) Wagner v. International. Ry., 133 N.E. .437 (1921) at 437.

(3) Berkey v. Third Avenue Ry., 155 N.E. 58 (1926) at 61.

(4) Ultramares v. Touche, 174 N.E. 441 (1931) at 444.

(5) See Charles McCarry, Citizen Nader (New York: Saturday Review Press, 1972) at 50 for a description of Cardozo's status at Harvard Law School as an icon or a role model.

(6) For criticisms in this vein, see G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges, 2nd ed. (New York: Oxford University Press, 1988) at 276-84.

(7) Contrast this with the ideals described in Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1978) at 40:
 By and large English lawyers and writers have tended to think of it
 as almost a virtue to be illogical, and have ascribed that virtue
 freely to their law; 'being logical' is an eccentric continental
 practice, in which commonsensical Englishmen indulge at their

(8) See his The Problems of Jurisprudence (Cambridge, Mass.: Harvard University Press, 1990) and his Law and Literature: A Misunderstood Relation (Cambridge, Mass.: Harvard University Press, 1988).

(9) A biography with limited insights into the intellectual life of its subject, published soon after Cardozo's death, is George S. Hellman, Benjamin N. Cardozo: American Judge (New York: Whittlesey House, 1940). Another compact source of .biographical information is Andrew L. Kaufman, "Benjamin Cardozo" in Leon Friedman and Fred L. Israel, eds, The Justices of the United States Supreme Court 1789-1969: Their Lives and Major Opinions, vol. 3 (New York Chelsea House: 1969) at 2287-2317.

(10) See Bernard Schwartz, "The Judicial Ten: America's Greatest Judges" [1979] So. 111. U. L. J. 405 at 427.

(11) MacPherson v. Buick Motor Co., Ill N.E. 1050 (1916).

(12) Palko v. Connecticut, 302 U.S. 319 (1937) at 328.

(13) See Palsgrqf v. Long Island R. Co., 162 N.E. 99 (1928) at 103.

(14) (New Haven: Yale University Press, 1921). Many of his other off-the-bench publications are reprinted in Margaret E. Hall, ed., Selected Writings of Benjamin Nathan Cardozo: The Choice of Tycho Brake (New York: Fallon Publications, 1947).

(15) It should be noted that, on some accounts, Cardozo did not qualify as a realist. For example, his name was omitted from the bibliography appended in Karl N. Llewellyn, "Some Realism About Realism Responding to Dean Pound" (1931) 44 Harv. L. Rev. 1222 at 1257-59. Jerome Frank was also critical of Cardozo, claiming that "he gave much aid and comfort to the devotees of legal magic": see Jerome N. Frank, Courts on Trial: Myth and Reality in American Justice (Princeton: Princeton University Press, 1949) at 56. Recently, such scornful treatment of Cardozo has been characterized as seriously underestimating his contributions to "Progressive jurisprudence": see Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992) at 189-92.

(16) 131 N.E. 898 (1921).

(17) Supra note 4.

(18) See Haig v. Bamford, [1977] 1 S.C.R. 466.

(19) See Edwin W. Patterson, "Cardozo's Philosophy of Law" (1939) 88 U. Pa. L. Rev. 71 and 156 and Edgar Bodenheimer, "Cardozo's Views on Law and Adjudication Revisited" (1989) 22 U. Calif. Davis L. Rev. 1095.

(20) Richard Roily, "The Banality of Pragmatism and the Poetry of Justice" (1990) 63 So. Calif. L. Rev. 1811 at 1811.

(21) See Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1977) at 111 and 116, where Cardozo is mentioned in the context of describing the approach of "Hercules" to hard cases, and Ronald Dworkin, Law's Empire (Cambridge, Mass.: Harvard University Press, 1986) at 10, where a "romantic" portrait of the judge's vision is expressly attributed to Cardozo.

(22) For samples of this literature, see Robert A. Ferguson, "Holmes and the Judicial Figure" (1988) 55 U. Chi. L. Rev. 506; Thomas C. Grey, "Holmes and Legal Pragmatism" (1989) 41 Stan. L. Rev. 787; and Carl Landauer, "Scholar, Craftsman, and Priest: Learned Hand's Self-Imaging" (1991) 3 Yale J. L. & Hum. 231.

(23) A.G. Quebec v. Irwin Toy Ltd., [1989] 1 S.C.R. 927 at 968.

(24) [1957] S.C.R. 285 at 306.

(25) See Meinhard v. Salmon, 164 N.E. 545 (1928) at 546.
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Author:Bauman, Richard W.
Publication:Review of Constitutional Studies
Article Type:Book review
Date:Jan 1, 1993
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