Weisberg, Richard H.

English

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DePaul Law Review Volume 50 Issue 2 Winter 2000: Symposium - Civil Litigation and Popular Culture Article 7 A Response on Cardozo to Professors Kaufman and Schwarz Richard H. Weisberg Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Richard H. Weisberg, A Response on Cardozo to Professors Kaufman and Schwarz, 50 DePaul L. Rev. 535 (2000) Available at: https://via.library.depaul.edu/law-review/vol50/iss2/7 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact digitalservices@depaul.edu. A RESPONSE ON CARDOZO TO PROFESSORSKAUFMAN AND SCHWARTZRichard H. WeisbergCOMMENTARYIn last year's Clifford Symposium Issue of this Review, a rich dis-cussion of Benjamin Cardozo's opinions and jurisprudence emerged.Previously engaged most creatively, perhaps, in the first number of alaw review named after the great judge,' this more recent discussionof Cardozo's craft was animated by the appearance of Professor An-drew Kaufman's book, Cardozo,2 and included brief essays by Profes-sor Kaufman himself, Judge Robert E. Keeton, and Professor GarySchwartz. In his article, Professor Schwartz builds on Professor Kauf-man's assessment of my earlier work on Cardozo.3 I thank the editorsof this review for offering me space beyond my contribution else-where in this volume to respond on the perennially fascinating ques-tion of Cardozo's way of doing justice.All my writing on Cardozo has been in the service of what I deemto be his own central jurisprudential vision, and this can be briefly re-articulated through a bifurcated aphorism: the judge must grappleconstantly with an awareness of the inevitable subjectivity of adjudica-tion;4 but, although no pre-existing rule inevitably dictates the out-come of any case, "a working knowledge of the business" 5 usuallypoints all judges to the same resolution of most cases. Vital for Car-dozo, I believe, is that "the business" of judging involves considerablecreativity. In fact, this concept can be brought to bear any time thejudge feels that an outcome would be unjust if it simply followed from1. See Paul A. Freund, Foreword: Homage to Mr. Justice Cardozo, 1 CARDOZO L. REV. 1, 1-3(1979), and full symposium that follows.2. ANDREW KAUFMAN, CARDOZO (1998).3. See, e.g., Richard H. Weisberg, Law, Literature and Cardozo's Judicial Poetics, 1 CARDOZOL. REv. 283, 283 [hereinafter Judicial Poetics]; RICHARD H. WEISBERG, WHEN LAWYERS WRITE7-12 (1987); Richard H. Weisberg, Judicial Discretion, or the Self on the Shelf, 10 CARDOZO L.REv. 105, 108-110 (1988) [hereinafter Self on Shelf].4. See Self on Shelf, supra note 3, at 108 (citing BENJAMIN N. CARDOZO, THE NATURE OF THEJUDICIAL PROCESS (1924)); see also Judicial Poetics, supra note 3, at 296 (citing BENJAMIN N.CARDOZO, THE PARADOXES OF LEGAL SCIENCE 127 (1928)).5. BENJAMIN N. CARDozo, THE GROWTH OF THE LAW 98 (1924).DEPAUL LAW REVIEWa formal rule; the craft of language will "liberate at times ' 6 from thebonds of formalism the just outcome pursued always by theadjudicator.Professor Schwartz misunderstands me to be saying that Cardozowould usually "lean on or manipulate precedent somewhat in order toachieve the results he desired."' 7 However, this comment misses myaphoristic point in two ways. First, justice for Cardozo often followsfrom the precedents, which thus resolve the great majority of cases.Second, however, any case can and should be rendered "hard" whenthe judge believes that the pre-existing rule alone would yield an un-just outcome. Nowhere do I make Judge Cardozo into a manipulativejudge; he was, indeed, quite respectful of the norm of professionalismthat is linked to precedent. Superceding that norm, however, is a feel-ing for justice, not purely subjective in nature, but rather emergingfrom what Cardozo consistently calls the "trained intuition" of thejudge. 8There is never a pre-ordained outcome, for Cardozo, waiting eitherto be followed or "manipulated." The adjudicator always has choices,and these must follow a trained but imperfect inner sense of justice.Even the most formalistic judge always instantiates that sense of jus-tice, and it is fallacious in any case (for Cardozo) to assume that a"precedent-based" outcome is more objective than a "reach" towardsa more just result. No judge, however traditional or "conservative"(or call it what you will), can escape his or her own trained intuitions.Thus, in one of only two cases exemplifying for Professor SchwartzCardozo's reach beyond the precedents, in Hynes v. New York CentralRailroad Cardozo insists (to the contrary) that "the courts below"have rigidly sought to pursue their own intuition, one which subjec-tively and wrongly led them to formalism instead of justice.9 Cardozoinsists, within this case, that his approach represents a "readjustment"of conflicting laws,' 0 a correction of the lower courts' limited intuition.Thus, I believe Professors Schwartz and Kaufman have missed Car-dozo in two key respects, and Professor Kaufman on his own in oneother, and these errors are far more important than any they havemade about my work. First, Cardozo's method as I describe it can be6. See Judicial Poetics, supra note 3, at 314-15 (quoting CARDOZO, supra note 5, at 89).7. Gary T. Schwartz, Cardozo as Tort Lawmaker, 49 DEPAUL L. Rnv. 305, 307 (1999).8. See CARDOZO, supra note 5, at 93 (quoting Roscoe Pound, The Theory of Judicial Decision,36 HARv. L. REV. 940, 951 (1923)).9. See Self on Shelf, supra note 3, at 108-110 (arguing that writing skills were important toCardozo's success as exemplified in Hynes v. New York Central Railroad, 131 N.E. 898, 900(N.Y. 1921)).10. Hynes v. New York Central Railroad, 131 N.E. 898, 900 (N.Y. 1921).[Vol. 50:535A RESPONSE ON CARDOZOseen in many cases, not just in one or two. I cite at least a dozen casesin my earlier work,' cases in which Cardozo often makes explicit thatthe "rule" itself is to be followed usually, but that obedience to prece-dent itself is merely one judicial "intuition" among many that can beutilized by the adjudicator.' 2 Second, as I have argued here, they havefailed to see Cardozo's consistent point about outcomes: that they areneither pre-determined nor frequently open to a legitimate challengeof "manipulat[ing] precedent.' 13Third, and I see this as a flaw in Professor Kaufman's biography,not at all in Professor Schwartz's brief assessment, Cardozo must berecalled primarily as a judge who wanted to empower his colleaguesby reminding them that, willy-nilly, appellate adjudicators are word-smiths. The aspiration to justice dovetails perfectly with the require-ment that judges rationalize their outcomes through language. Toomany judges today denigrate, delegate, or dissipate their linguisticfunction. In paying scant attention to what was central in Cardozo'sadjudication, Professor Kaufman's otherwise admirable book missesboth the mark and the mission of his subject.11. See Judicial Poetics, supra note 3, at 320-342.12. See, e.g., Judicial Poetics, supra note 3, at 337-41 (illustrating Cardozo's overt justificationfor ignoring New York's time honored aversion to the doctrine of incorporation by reference inIn re Fowles, 118 N.E. 611 (N.Y. 1918). My prior analysis of Cardozo's jurisprudence, which isnot of course limited to torts cases, has foregrounded Palsgraf and MacPherson, as well as Hynesand cases like Fowles and many others from his years on the New York Court of Appeals. SeePalsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928); MacPherson v. Buick Motor Co., 111 N.E.1050 (N.Y. 1916); Hynes v. New York Central R.R., 131 N.E. 898 (N.Y. 1921); In re Fowles, 118N.E. 611 (N.Y. 1918).13. See Schwartz, supra note 7 at 307.20001DEPAUL LAW REVIEW [Vol. 50:535

A Response on Cardozo to Professors Kaufman and Schwarz

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A Response on Cardozo to Professors Kaufman and Schwarz

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