Cardozo and the Upper-Court Myth

Abstract

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's 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's frankness emboldened others, lawyers and judges, to be less diffident in thinking about and commenting on courthouse ways.