Adventures of a Biographer

Cardozo’s Path in the Law
The biography dispels the notion that Cardozo’s skill as a practicing lawyer was solely in the academic setting of the appellate courts. Cardozo was a fine appellate lawyer, but he was also a fine trial lawyer. His approach was that of an advocate, not an academic. And what an advocate! Cardozo was a tiger, who would attack the opposition with every weapon at hand—the facts, the law, technicalities, humor, sarcasm, even barbs directed at the parties, witnesses, and counsel on the other side.

CardozoCardozo’s ability and his connections in the Sephardic community brought him business, and most of his business consisted of difficult matters that were referred to him first by his Jewish friends and later by a wider circle of New York lawyers. These same people were the ones who helped advance his career at every stage. Cardozo observed the conventions of judicial politics. He did not actively seek the positions he attained, but he allowed his friends and supporters to work for him.

The major part of the biography assesses Cardozo’s contributions to law. His importance lies in the impact of his judicial opinions and writings during a critical period in American law. One hundred years ago an influential method of legal thought called legal formalism concealed or even denied the creative role of judges. Cardozo, following Holmes and Pound, helped combat that doctrine. He reshaped rules in many areas of private and public law, for example, refining many elements of negligence law and expanding the boundaries of government power to regulate the economy in constitutional law. At the same time, in his extrajudicial work of lecturing and writing, he explained and defended judicial lawmaking.

My book examines in detail his many opinions in the fields of torts, contracts, constitutional and international law, and criminal law, and it looks at the smaller number of opinions dealing with corporations, property, and professional responsibility. The famous cases, such as Palsgraf, are there. Indeed, one well-known story about Cardozo and the Palsgraf case is debunked.

"Cardozo’s majority opinion [in Palsgraf, the famous torts case] might have been treated simply as one attempt among many to refine an aspect of traditional negligence theory around a duty-oriented analysis. But it made a big impact in the legal world. The bizarre facts, Cardozo’s spin on the legal issue, the case’s timing in relation to the Restatement project, its adaptability for law school teaching, the policy-oriented dissent by Andrews, Cardozo’s rhetoric, and Cardozo’s name-all these factors combined to make Palsgraf a legal landmark."
From Cardozo, p. 303.

The story is that before the case came to his court, Cardozo listened to the lower court opinion being analyzed at a meeting of the American Law Institute torts advisers who were working on the Restatement of Torts. It is a wonderful story—first told by Professor Prosser, who attributed it to Dean Young B. Smith of Columbia Law School—about the way the development of law may be influenced. It has often been repeated, sometimes with a suggestion that there was something improper about Cardozo’s attendance during the discussion. During the course of my research I discovered a set of the long-lost minutes of the meetings of the ALI torts advisers. They were piled on the floor along with a variety of miscellaneous junk in a library that shall remain nameless—except that you should see it if you haven’t already because it was renovated quite beautifully last year. The minutes led me to conclude that the wonderful story is false—that Cardozo was not present at any meeting of the advisers at which such a discussion took place and indeed that there was no such discussion by the advisers before the Court of Appeals opinion in Palsgraf came down. But if I have destroyed a nice story for devotees of Palsgraf, I have substituted another, for I came across a connection between the Palsgraf and Cardozo families that provides a wonderful ending to the story of the litigation. But I don’t want to give it away. You’ll just have to read the book.

My conclusion about Cardozo’s place in jurisprudence is that he was as much an accommodator in law as he was in life. His progressivism is wellknown, but there was also a cautious side to his work as judge and theorist. Cardozo was no revolutionary. His vision of the judicial role was a version of what English and American judges had done for centuries, reaffirmed and adapted for modern use. He believed that the major role in guiding social change in a democracy belonged to the legislature and the executive. Thus, he innovated most when the step to be taken was modest and when the innovation did not violate what he saw as the prerogatives of other institutions
of government—and ideally when the legislative or executive branch had already pointed the way. While Cardozo often adapted law to new social conditions, he also often declined to make such adaptations. Fairness was important to him, but he did not believe that judges could always do what they thought was fair or just. Cardozo believed that he had to respect precedent, history, and the powers of other branches of government. Judging involved taking all these factors into account, methodically and as impartially as he could. The example he set as a common law judge was another element of Cardozo’s importance.

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