Rediscovering The Nature of the Judicial Process: A Comment on Professors Abraham’s and White’s Doctrinal Forks in the Road

Abstract

Sometime between 1918 and 1920, Dean Thomas Swan, with the approval of his faculty, invited Benjamin Cardozo to give the prestigious Storrs lectures at Yale Law School. The invitation was notable. After only a few years on the bench, Cardozo clearly had made a mark, in part thanks to his 1916 opinion for the New York Court of Appeals in the MacPherson case. Cardozo seems to have initially demurred but then, when asked if he could share his thoughts on how he went about the job of judging, agreed. Cardozo lectured on four successive days in February 1921. According to Arthur Corbin’s well-known account, the first lecture was met with a standing ovation that subsided only when Cardozo left the room. The remaining lectures then were moved to a room twice as large that was filled to capacity, with Corbin reporting that attendees were “spell-bound.” Though perhaps embellished, this recounting is plausible. Cardozo was a powerful speaker. And, as I will suggest below, he delivered a message that audience members might had reason to find engaging.