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Literary Influence on Legal Philosophy: A Comment on Professor Meyler’s Cardozo's Literary PrecedentsWhat shapes judicial temperament? What hones judicial style? Seeing as judges are grown in neither a hothouse nor a test tube, presumably they attain their temperament and style much the same way as the rest of us—which is how, exactly? Do we soak up influences like sponges? Or do we spring forth like Athena, our outlook and predilections mostly formed, and find in outside influences that which we want to see? I am not qualified to answer these questions, about either judges or people in general, yet they are the questions that Bernadette Meyler’s lovely piece on Cardozo’s Literary Precedents prompts for me. I will suggest here that Meyler’s piece identifies and rejects some bad answers to these questions and also hints at some more intriguing possibilities.
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Some Notes on George EliotIt will be found true, I think, of the works of every mastermind that there is in them some recurring note, some theme, some refrain, that stamps the author’s personality upon them, and forms a principle of unity throughout them all.1 It may be simply by some distinctive line of thought, it may be merely by a prevailing mental tone, that nature thus reveals how one-sided are the broadest minds, and proves how narrow, after all, are the best and the greatest of mankind. For a great truth paralyzes as well as inspires. It limits as well as exalts. Minds that have felt its full influence are, as Mr. Lowell would have said, possessed by it; they do not possess it. They are in its power; it is not in theirs. And so it comes to pass that, in many cases, at least, a tendency toward repetition in an author is a token, not of sterility, but of strength. It marks the sincerity, the truth of his convictions; it shows that his writings stand for thoughts that have become imbedded in his being; and thus we can judge him, if not more favorably, at least with a keener sympathy. Thoughts, as Emerson so clearly saw, are rarer possessions than most of us seem to fancy; and only by stress and toil and wear of spirit can one of them be made our own. The rest that receive the name are, in fact, mere outgrowths of these central ideas of our being; and we ought hardly to quarrel with those who have the frankness to show us these ideas, running through all their works, colouring all their conceptions, and yielding them an infallible test of truth and beauty.
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Cardozo’s Literary PrecedentsBenjamin Cardozo penned his essay “Law and Literature” long before the field of law and literature took off in the 1970s.1 The piece, which furnishes a typology of judicial styles, has become a classic early example of engagement with the intersection of the two areas.2 “Law and Literature” fits squarely within what is now called the genre of “law as literature,” considering the literary attributes of legal writing.3 Reading it, one might never imagine that Cardozo had also considered works of fiction in depth. Indeed, few know of his early study of literature, including his heretofore unpublished undergraduate paper on novelist George Eliot.4 Although this earlier work does not touch on law explicitly, it demonstrates the emergence of Cardozo’s concerns with duty, causation, and responsibility even before he became a judge, presaging the account of morality furnished in The Nature of the Judicial Process. It also helps to flesh out the reasons why, as he claims in “Law and Literature,” style is so significant.
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Ambivalence, Judicial Craftmanship, and the Development of the Law: Variations on a Theme of Benjamin CardozoIn The Nature of the Judicial Process, Cardozo identifies the embrace of uncertainty as a mark of judicial expertise. Such uncertainty, he claims, provides an occasion for the exercise of creative energy and the judicial development of the law. This paper critically examines and extends, in light of contemporary work on the philosophy and psychology of ambivalence, Cardozo’s views about the relevance of uncertainty in judicial decision making and its import for the evolution of the law. First, it provides an account of the benefits of ambivalence in judicial decision-making, with a special focus on the links that there are between ambivalence and judicial creativity. Second, it argues that there is a certain tension between Cardozo’s views on the important role that ambivalence plays in judicial decision-making and his view of law’s evolution as a streamlined, self-correcting, process. Two problems—the problem of hidden alternatives and the problem of unconceived alternatives—and the ever-present possibility of error vividly bring to light the extent to which law’s progress may be hampered. Third, it argues that for judges to recognize and resolve ambivalence in ways that positively contribute to the development of the law, a certain kind of judicial temperament must be developed. This temperament is neither skeptic nor dogmatic, vindicates imagination as a critical capacity for excellence in judging, and fosters a judicial style (and, more broadly, a legal culture) that, in Cardozo’s spirit, frees itself from the quest for certainty.
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Cardozo and the Nature of the Equitable ProcessBenjamin Cardozo is associated with the common law, equity, judicial decision-making, and with a characteristic kind of proto-Realism. And in his day he was the most prominent expositor of the law of New York, a jurisdiction that had led the way in the merger of law and equity. So it is with equity. Equity pervades Cardozo’s work as a theme of the law and as a problem in judicial theory, in both his theoretical writings and in his decisions. In The Nature of the Judicial Process, Cardozo invokes equity when introducing the problem of reconciling the need for both certainty and flexibility in the law. And equity plays a large role in the modes of judicial decision-making he identifies—the philosophical, the historical, the customary, and the policy-oriented. This last, or sociological, method is the “arbiter” of the others in a way suggestive of equity’s role as meta-law. Because this approach to equity could only emerge from its application, it is not surprising that cases in the area of equity would receive his special attention as a judge. Most clearly in some headline equity cases but going far beyond them, Cardozo’s vision for the integration of equity and law was functional rather than primarily jurisdictional. Equity for Cardozo both kept the law to a high moral standard and supplemented and corrected the law in limited circumstances. Sometimes Cardozo’s reformulation of equity in this functional sense reformed the law so subtly as to be easy to miss. Seen in the light of later full-blown Legal Realism, Cardozo’s equity is easily mistaken for a version of Realism in its rhetoric but disappointingly cautious in its results. Cardozo’s equity was a genuine path not taken and one that perhaps still could bring equity into the modern age.
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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 ProcessAs 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.
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Doctrinal Forks in the Road: The Hidden Message of The Nature of the Judicial ProcessRevisiting The Nature of the Judicial Process, the published version of four lectures Judge Benjamin Cardozo delivered at Yale Law School between February 14 and 18, 1921, presents a challenge to the contemporary reader. That challenge is to imagine how the lectures could have generated the strongly affirmative reaction that they apparently did. In this Essay, we seek first to recover that reaction and to juxtapose it against our initially far less enthusiastic response. We then identify a feature of the lectures that was not remarked upon when they were first published and has not been emphasized since: Cardozo’s examination of how appellate judging is frequently about whether to extend what he called a doctrinal “path,” or not to extend that path. If the path is extended, existing doctrinal propositions are treated as governing not only the case at hand, but also as applying to an expanded set of potential future cases. But if the path is not extended, the doctrinal principles embodied in a set of previous cases are deemed inapposite to the current case, and a developing doctrinal path is truncated, thus limiting its application to future cases.
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Equity, Morality and Law in The Nature of the Judicial ProcessFor equity lawyers over the big pond, Cardozo is hero: one of a few judges whose fame has survived the great rift that opened between English and American law when the latter embraced fusion between equity and law and the consequent decline in the study of equity as an independent body of law. Cardozo’s extensive engagement with doctrines whose origins lie in equity (even if this has been long forgotten in his native country), the colorful language in which he immortalized them, and the bold ways in which he developed some of the central themes of modern equity—like the fiduciary relationship and the constructive trust—enshrined him as a force to be reckoned with in the field of equity. It is no wonder that a man of “[t]he most delicate conscience and the nicest sense of honour” like Cardozo, was drawn to equity as a major source of inspiration.1 In this paper I wish to argue that the jurisprudence of equity is a key to understanding his treatise on the art of judging, The Nature of The Judicial Process (NJP). While the text is too nuanced and rich to be placed firmly in one tradition or school of thought, I argue that the jurisprudence of equity with its highly sophisticated engagement with the issues that are of concern to Cardozo, and the historical perspective it offers to the pragmatically-minded jurist, serves as an essential foil for the work he aims to do in the text.
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CARDOZO AND UNCERTAINTY IN THE COMMON LAWSince at least the time of Blackstone, scholars have identified the “uncertainty” of the common law as a problem that is endemic to its functioning. Indeed, to Blackstone the idea was “so generally adopted” that any attempt to “refute it” was likely to result in ridicule. Yet, even to him, the precise source of the uncertainty was something of a mystery, variously attributed to the multiplicity of laws and judicial decisions, the resulting abundance of potentially contradictory rules, and the heightened discretion afforded to judges to declare the law in individual disputes. All the same, to Blackstone, the fault—if any—was not with the common law but with the nature of laws more generally. As he wrote: It has sometimes been said [that uncertainty] owe[s] its original to the number of our municipal constitutions, and the multitude of our judicial decisions; which occasion, it is alleged, abundance of rules that militate and thwart with each other, as the sentiments or caprice of successive legislatures and judges have happened to vary. . . . People are apt to be angry at the want of simplicity in our laws: they mistake variety for confusion, and complicated cases for contradictory.
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Rediscovering The Nature of the Judicial Process: A Comment on Professors Abraham’s and White’s Doctrinal Forks in the RoadSometime 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.
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Doctrinal Forks in the Road: The Hidden Message of The Nature of the Judicial ProcessRevisiting The Nature of the Judicial Process, the published version of four lectures Judge Benjamin Cardozo delivered at Yale Law School between February 14 and 18, 1921, presents a challenge to the contemporary reader. That challenge is to imagine how the lectures could have generated the strongly affirmative reaction that they apparently did. In this Essay, we seek first to recover that reaction and to juxtapose it against our initially far less enthusiastic response. We then identify a feature of the lectures that was not remarked upon when they were first published and has not been emphasized since: Cardozo’s examination of how appellate judging is frequently about whether to extend what he called a doctrinal “path,” or not to extend that path. If the path is extended, existing doctrinal propositions are treated as governing not only the case at hand, but also as applying to an expanded set of potential future cases. But if the path is not extended, the doctrinal principles embodied in a set of previous cases are deemed inapposite to the current case, and a developing doctrinal path is truncated, thus limiting its application to future cases.
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Taking Experience Seriously: A Comment on Professor Zipursky’s Benjamin Cardozo and American Natural Law TheoryCommenting on a paper with which one profoundly agrees presents something of a dilemma. If intellectual progress requires anything like the adversarial method, then one feels a certain pressure to criticize. Yet scholarly scruples demand something more than devil’s advocacy. That is the dilemma I face in commenting on Benjamin Zipursky’s essay, “Benjamin Cardozo and American Natural Law Theory.”1 I am in deep sympathy with the essay’s core claim that a tradition of legal thought links Benjamin Cardozo to Lon Fuller and Ronald Dworkin. Indeed, I recently restructured my Jurisprudence class around that tradition. My solution to the dilemma is to grasp ahold of both of its horns by offering a little criticism and then (I hope) some constructive engagement. I first draw a couple of distinctions that I think are important but which Professor Zipursky’s essay glosses over. I then suggest a way of developing further what I have characterized as the essay’s core claim. My suggestion is that the tradition to which Professor Zipursky has drawn our attention is older, broader, and more diverse than one might conclude after reading his essay. If that’s true, it does not undermine, or even diminish, Professor Zipursky’s core claim; to the contrary, it underscores the importance of Cardozo and of Zipursky’s account of his place in American legal thought.
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Benjamin Cardozo and American Natural Law TheoryUnlike many Supreme Court Justices, Benjamin Cardozo led a rather humdrum existence outside of the courthouse, and it is quite clear that he was not especially interested in or adept at all versions of the game of social life. One wonders whether Cardozo was a man who was comfortable in his own skin. The Nature of the Judicial Process tells us that at least in one very important dimension of his life, he was indeed comfortable in his own skin, he was his own man, and he was quite unapologetic for who he was. The book and the lecture series that spawned it reveal a person supremely comfortable reflecting on what he did in his job, all in the knowledge that what he did in his job was good and right and indeed exemplary for those who hold that position. Sufficiently exemplary, indeed, to warrant a whole book of reflections on what he did. One might view this as immodesty on Cardozo’s part, but I view it quite the opposite way. Here was someone for whom the job of legal interpretation and appellate judging was a special comfort zone. And even within that comfort zone, there were multiple and quite sincere expressions of humility. Cardozo saw himself as a public servant lucky enough to have an interesting job that was of considerable importance to his state and his nation.
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Conflict, Consistency and the Role of Conventional Morality in Judicial Decision-MakingCardozo defends a pragmatic approach to judicial decision-making. Judges should apply and develop legal rules with an eye toward their social function. “Public policy” at this stage of decision-making theoretically could be rooted in a social scientific exercise or some other direct attempt to come up with the optimal rule. Cardozo instead directs judges to conventional morality. Conventional morality is an unlikely solution given the specter of inconsistency that it raises. But in the disagreement and conflict about conventional morality that seem to render it unstable lie the resources for self-correction over time. Judicial decision-making is inevitably inconsistent to some degree, no matter how judges try to fill in gaps after traditional decision-making criteria run out. Alternatives like custom, culture and attempts to decipher the “best rule” directly, do not link law with public discourse. Looking to conventional morality allows that judicial decisions, if not aligned, form a progressive arc over time.
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Introduction: The Nature of the Judicial Process at 100This special issue of the Yale Journal of Law and the Humanities contains papers presented at a March 2022 conference at Yale Law School marking the centenary of the publication of Benjamin Cardozo’s The Nature of the Judicial Process. (The pandemic foiled our efforts to time these events more precisely.) One of us (Barzun) came up with the idea, and the two of us, together with Daniel Markovits, Benjamin Zipursky, and Konstanze von Schütz, planned the event and this volume. We can think of no more apt publisher for the conference papers than the Yale Journal of Law and Humanities. As a person of letters and science with both pre-modern and modern sensibilities, as someone both of and not of this world, and as a jurist who was unsentimental yet devoted to the cause of human dignity and welfare, Cardozo approached the law first and foremost as a humanist. The papers here collected—which range from the historical to the philosophical to the literary—are offered in the same spirit. One may ask whether the hundredth anniversary of the publication of Cardozo’s book is an occasion worth marking. Judge Richard Posner observed in his contribution to the centennial issue of the Harvard Law Review that because “a journal has no natural lifespan, the fact that it is 100 years old should interest only people who have a superstitious veneration for round numbers.” A book’s publication date may have an even weaker claim for recognition since it does not even give birth to an institution with a “lifespan” at all, natural or otherwise.
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First Amendment Metaphors: The Death of the “Marketplace of Ideas” and the Rise of the Post-Truth “Free Flow of Information”As cognitive linguists George Lakoff and Mark Johnson have shown, metaphors are words “we live by.” In law, they are words we govern by. The “marketplace of ideas,” introduced into the jurisprudential imagination just over a century ago by Justice Holmes dissenting in Abrams v. United States, persists as the central organizing metaphor for how judges, scholars, and the public understand the freedom of expression. It envisions a speech ecosystem where competition among ideas, refereed by a responsible press, results in truth winning out. But the marketplace metaphor is a relic. Today’s expressive ecosystem dramatically departs from the metaphor’s core assumptions, marked by information overload and replete with misinformation and lies proliferated by speech platforms unable or unwilling to act as “arbiters of truth.” These dynamics are better described by another First Amendment metaphor, “the free flow of information,” which has operated as a stealth metaphor: obscured by the ubiquitous marketplace metaphor, it has done enormous work within the doctrine without much critical notice. The metaphor’s logic privileges information over ideas, prioritizes content quantity over quality, and removes accountability from the system of free expression. In the end, truth is the casualty.
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Bordering Legal ParenthoodWhy should borders matter to the legal field of parenthood? The sustained reification of the institution of Family requires borders—spatial, legal, and symbolic—that demand the exclusion of those who fail to adhere to its norms. Yet, as the present article exposes, this institution’s borders can also become a terrain in which new forms of agency and beneficial processes emerge, inviting a reconsideration of the traditional paradigms that sustain that institution. This article examines this dual understanding of the role of borders and assesses the transformative costs and trade-offs of crossing them. To pursue this inquiry, it focuses on the longstanding struggle of gay Israeli men to become parents via surrogacy, and contextualizes the trajectory of this struggle across different geopolitical scales, through the lens of “border-as-process”. This “bordering” lens reveals how borders—in their opening, closing, and transgressing—create new relations and offer new possibilities for legal and institutional change.
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Eliding Original Understanding in Cedar Point Nursery v. HassidCedar Point Nursey v. Hassid is a triumph of the conservative majority of the Supreme Court. In holding that temporary entries to land are takings without regard to duration, impact, or the public interest, the Court fulfilled the decades-long ambitions of anti-regulatory advocates of private property. Progressive and conservative scholars agree that the decision runs roughshod over precedent. This essay focuses on a less obvious aspect of Cedar Point: its flagrant departure from original understanding. American law at the time of the founding recognized a robust right to enter private property. Trespass law did not even reach entries unless they caused economic damage, and statutes often placed additional limits on suits for unauthorized entry. Starting with Massachusetts Bay’s 1641 Liberties Common and continuing well into the nineteenth century, colonies and states also created numerous formal entitlements to enter. Such rights were enshrined in the constitution of Vermont—the first American constitution to include a takings provision—and the Anti-Federalist report that led to the Bill of Rights. With or without constitutional guarantees, courts dismissed challenges to these entries as frivolous, contrary to American culture, even a rejection of what made the new nation a land of liberty.
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Caribbean “Credit Nations”: Consignment Economies in the British West IndiesA central tenet of English property law has been the protection of land and the interests of potential interest holders in such land. For centuries, creditors could not reach land to satisfy debts either in the British Isles or in the colonies. Against this background, Claire Priest delineates how the British Parliament, in a series of deeply controversial moves culminating in the Debt Recovery Act of 1732, modernized law in the American colonies so that it privileged creditors. More specifically, the Debt Recovery Act made it possible for creditors of colonial debtors to execute debt judgments on real property as well as on enslaved people for the recovery of debts. Colonial governments in the American colonies, building on this legislative framework, also promoted innovations that would allow creditors to reach both land and slaves more easily. For example, several colonial statutes were passed to make clear that enslaved persons were property that could be utilized as collateral for loans, and also auctioned, in the event that debtors later defaulted.
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Rethinking Property Rights in the Light of Credit NationThe publication of Claire Priest’s new book, Credit Nation: Property Laws and Institutions in Early America, is an occasion well worth marking. Several years ago, when I read her article Creating an American Property Law, the first piece in the project that became this book, I was dumfounded. The subject of that article, the Act for the More Easy Recovery of Debts in His Majesty’s Plantations and Colonies in America, enacted by the British Parliament in 1732, was a major, unilateral revision of property rights to land in the colonies, though not in Britain. The act not only made it possible for creditors of colonial borrowers to seize land in payment of unsecured debts, but it stripped future generations of property rights that had long been secured to them under English law. How could it be that a redistribution of this importance was so little known until Priest called attention to it? How could it have been so completely ignored in writing on colonial political, legal, and economic history, especially in accounts of the British impositions that led to the Revolution? Much more minor afflictions, such as Virginia Governor Dinwiddie’s attempt in 1752 to levy the fee of one pistole for sealing land patents, have been singled out as precursors to the rebellion: “Liberty & Property and no Pistole!” Priest’s work not only remedies this omission, but by connecting the debt recovery act to later Revolutionary-era events, provides a deeper understanding of the protests over Dinwiddie’s fee, as well as over later, more consequential, levies such as the Stamp Act.
