Benjamin N. Cardozo: The Tort Whisperer Nine Decades Later.

• Author: Roth, Larry M.

Benjamin Nathan Cardozo. Born 1870. Died 1938. (1) He was only human.

This article explores Cardozo's most famous scripted tort decision, Palsgraf v. Long Island R. Co., 248 N.Y. 339 (1928), (2) 83 years since he breathed his last breath. The analysis herein, using the Palsgraf decision, seeks to compare and contrast Cardozo's humanistic and intellectual dichotomies which are exemplified in that celebrated case. It is from this methodology of analysis whereby Cardozo, in my view, contrary to judicial lore, is shown to be an emotive human being in his judicial decisionmaking. This has not been the traditional perception of Cardozo.

As a beginning--Cardozo--who remembers him? Does a long forgotten sleepy afternoon during law school possibly conjure up a distant memory? Maybe those few still awake during a tortuous Socratic dialogue, especially in torts (3) or contracts, (4) recall a glimmer of his legal and historical life?

Nevertheless, Benjamin Cardozo left a foundational blueprint on nearly all chronicles of the law. (5) To commemorate him, there is the Cardozo School of Law of the Yeshiva University. The obvious Jewish reference to "Yeshiva," (6) another contradiction in his life, was despite being born into a Sephardim Orthodox family, he did not believe in religion. (7) Another anomaly is Cardozo's public support of numerous Jewish organizations during his life. (8) Yet, he never experienced overt anti-Semitism until he reached the U. S. Supreme Court. (9)

Cardozo's intellectual pursuits extended to develop commentaries on why judges should not decide the blurred legalities of human conflicts only on formulistic ritual. Cardozo stated:

The [judge's] range of free activity is relatively small. We may easily seem to exaggerate it through excess of emphasis. None the less, those are the fields where the judicial function gains its largest opportunity and power. Those are the fields, too, where the process is of the largest interest. Given freedom of choice, how shall the choice be guided? Complete freedom--unfettered and undirected--there never is. A thousand limitations--the product some of statute, some of precedent, some of vague tradition or of an immemorial technique, encompass and hedge us even when we think of ourselves as ranging freely and at large. The inscrutable force of professional opinion presses upon us like the atmosphere, though we are heedless of its weight. (10)

A Life Overview

Cardozo must be measured as a judge by the unrelenting movement of time that marks our constantly evolving concepts of renown, or mediocrity, and stretches well beyond the finality of one's demise. (11) As highlighted below, Cardozo is revered in some circles, while others thought him overly stylistic and problematic in his opinions. For 19 of his living 67 years, he served as a judge in New York state. (12) Cardozo was 46 when, in 1913, he was elected to the New York Supreme Court. (13) Within one month, his extraordinary talent garnered him temporary appointment to New York's highest tribunal, the Court of Appeals. Cardozo was then continually elected to that court until 1932. He served his last five years as chief judge. (14)

Cardozo's cerebrum operated on a high scale of intelligence, graduating from Columbia University in 1889, having enrolled at 15 years old. (15) He attended Columbia Law School for less than two years, (16) then quit. He interned at a law firm and proceeded to pass the bar. (17) For 22 years he practiced as a hard-knuckled trial litigator, a contradiction in terms to descriptions of his passivity, "saintliness," and angelic appearance as a judge. (18) He concluded those litigation days as a premiere appellate advocate. (19)

Cardozo, when litigating, was apparently not above personal attacks, manipulations, or whatever was necessary to achieve a "client's goal." (20) Thus, even a revered lawyer as Cardozo understood litigation was not conducted in pristine English social clubs resolving legal disputes over tea and crumpets. Would Cardozo be branded today as a "Rambo" litigator?

Aspects of Cardozo's personal life were different from the perceived norm, at least for his historical time. For one, Cardozo never married. (21) It is not clear whether his emotional needs were ever consummated. (22) His mother died when he was nine. (23) Cardozo suffered through early deaths of siblings, except his older sister, Nell. (24) Cardozo lived with Nell until her death in 1929. Nell filled the role of his mother. Their emotional attachments were complicated and have never fully been understood. (25)

In destroying all "letters" to and from Nell, Cardozo blocked others from dissecting the multiple emotional layers of his life. (26) Certain professional and personal written exchanges have survived. (27) These do not generally enable an inquiry to the core that might have been exposed in less guarded letters to Nell.

Politics and judges are lasciviously interwoven, even into "neutral" merit selection processes. Albert Cardozo, Benjamin's father, was elected to the trial court in New York City (Supreme Court) with the support of Boss Tweed, a Tammany Hall political operative. (28) Unfortunately, Albert Cardozo was not totally above acts of impropriety. He did succumb to the machinations of Tammany Hall. (29) Cardozo's father was described as a very good trial judge, even brilliant. (30) However, on the shadowy side he doled out judicial favors to friends of Boss Tweed. (31) The senior Cardozo resigned amidst controversy, and in disgrace. Yet he was never prosecuted nor disbarred. (32) Afterwards he developed a sustainable law practice, but died when Benjamin was 15. (33)

His father's public scandal seemed to have deeply scarred Cardozo. He devoted most of his life to expunging this dark familial blight left by his father's disgrace. (34) Cardozo became singularly focused on an unrelenting task to undo this shame. Between his workaholic efforts as a trial lawyer, appellate attorney, and renowned career as a judge, (35) Cardozo defied the literary father of Oliver Wendell Holmes, Jr.'s sarcastic observation, "[I]f you eat sawdust without butter, young man, you will be a success in the law." (36)

Cardozo's judicial opinions were excruciating to compose. He labored over crafted phrases, words, and drafts. (37) Cardozo's writing style is unique, with "inversions of standard word order and his use of metaphor and aphorism [making] for brevity and vividness." (38) Critics castigated his style as being something akin to "alien grace." (39)

Oliver Wendell Holmes, Jr., was Cardozo's idol. (40) In 1932, Holmes, 91, was forced to retire from the U.S. Supreme Court. (41) With bipartisan support, a soon to be electorally defeated Herbert Hoover nominated Cardozo. (42) Holmes was pleased. (43)

Had Cardozo not overcome his father's transgressions? Yet, the U.S. Supreme Court was a position Cardozo did not seek in 1932. (44) He was already in poor health, (45) and he personally and socially enjoyed that tenure even less. (46) His lifetime term on the Court lasted but six years. In 1938, after suffering a coronary attack, and later a stroke, (47) Cardozo's heart progressively weakened over the months until it silently stopped beating. (48)

Scholarship About Judging

In 1921, Yale Law School asked Cardozo to give a series of lectures on judging. (49) Written compilations of these lectures were assembled into The Nature of the Judicial Process (Nature), probably his most famous book. (50) He also wrote essays and lectures published in The Growth of the Law, (51) The Paradoxes of Legal Science, (52) and Law and Literature. (53) There is debate whether Cardozo's pronouncements have stood the test of time as seminal work on how judges judge? (54) The conflicting principles generated by Cardozo culling from arcane concepts a framework on how a judge really decides cases led some to call for his impeachment since he was a sitting judge. (55) Throughout his written works, Cardozo lays out the realities behind the imperfect science of judging--personal, subjective, pragmatic, or at times biased. Arguendo maximus:

We shall know that the process of judging is a phase of a never ending movement, and that something more is exacted of those who are to play their part in it than imitative reproduction, the lifeless repetition of a mechanical routine.

I come back in the end to the text with which I started: "Law must be stable, and yet it cannot stand still."

I make no pretense of having given you the key that will solve the riddle, the larger and deeper principle that will harmonize two precepts which on their face may seem to conflict, and thus to result in an antinomy. I can only warn you that those who heed the one without honoring the other, will be worshiping false gods and leading their followers astray. The victory is not for the partisans of an inflexible logic nor yet for the levelers of all rule and all precedent, but the victory is for those who shall know how to fuse these two tendencies together in adaptation to an end as yet imperfectly discerned. (56)

In Nature, a theorem stands out challenging the axiom of legal precedent as one jagged path on how judges make their decisions. In essence Cardozo describes it as what a judge wants to do, whether to stand on shifting intellectual quicksand, or on pre-existing concrete. A priori, generational questions of law will be decided inconsistently during variant times by different judges.

Some of Cardozo's musings on judging give surprise pause, even today, and more contradictions. Cardozo gives his imprimatur to a judge's fluidity of decisionmaking:

A case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all. (57)

Then his...