Cardozo’s Equitable Method and Judicial Lawmaking’s Auxiliary Role: A Comment on Professor Samet’s Equity, Morality, and Law in The Nature of the Judicial Process

Abstract

As Irit Samet expertly demonstrates in her contribution to this Symposium, the jurisprudence of equity is “key” to understanding some of the central ideas Benjamin N. Cardozo sets out in The Nature of the Judicial Process (NJP). This is, as she puts it, because equity and the ideas underlying it serve “as an essential foil for the work [Cardozo] aims to do in the text.” According to Samet, what Cardozo is after is the promotion of a progressive agenda that succeeds in striking the balance between dynamism and stability of a legal system. For her, the aims laid out in the NJP resonate strongly with the aspiration of equity. In her article, she draws attention to the structural similarities between Cardozo’s picture of adjudication, on the one hand, and the jurisprudence of equity, on the other. On Samet’s view, equity aligns law and morality while carefully balancing judicial creativity and adherence to established rules and precedent. Equity, so she argues, lays out a picture of judicial decision-making that is attuned to the necessity to synchronize law and morality without running roughshod over the rule of law. Samet sees the jurisprudence of equity as exemplifying “the viability of aligning law and morality as a project that judges can and ought to pursue.