Cardozo and the Upper-Court Myth

There has recently been published a volume, Selected Writings of Benjamin N. Cardozo, which every thoughtful lawyer and judge will want ready at hand. It will repay constant re-reading. It includes nearly all Cardozo\u27s extra-judicial writings, notably The Nature of the Judicial Process, first published in 1921, and The Growth of the Law, first published in 1924. In these two books, one of our most eminent appellate judges set forth his legal philosophy. More important, he showed how this philosophy aided him in his judicial work, and, in that connection, disclosed some of the intimate details of upper-court techniques. I say more important because, before Cardozo, no judge, with the exception of Holmes, had been similarly candid. Cardozo\u27s frankness emboldened others, lawyers and judges, to be less diffident in thinking about and commenting on courthouse ways

Civil Law Influences on the Common Law--Some Reflections on Comparative and Contrastive Law

As I\u27m talking after a dinner preceded by a kind of liquidity which economists have not considered, I\u27m reminded of a sentence in Sterne\u27s Tristram Shandy: The ancient Goths of Germany had . . . a wise custom of debating twice everything of importance to the state. That is, once drunk and once sober: Drunk, that their councils might not lack vigor; and sober, that they might not want discretion

Modern and Ancient Legal Pragmatism--John Dewey & Co. vs. Aristotle: II

John Dewey is rightly hailed today as America\u27s most influential philosopher. Whether or not one agrees with critics who say that he has overstressed the practical, I believe it undeniable that his thinking about thinking has had immensely valuable effects on thinking in many fields. His outstanding thesis, to state it crudely, has been that all generalizations–all theories, principles, rules–should be tested by observing how they work in practice. Leading legal thinkers in particular have often quoted with approval his theory about the relations of theory and practice. Those thinkers, in turn, have influenced many other legal thinkers who have exploited Dewey\u27s insights, often without acknowledgement or knowledge of their debt to him