Benjamin N. Cardozo: Wikis


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Benjamin N. Cardozo

In office
March 2, 1932[1] – July 9, 1938
Nominated by Herbert Hoover
Preceded by Oliver Wendell Holmes, Jr.
Succeeded by Felix Frankfurter

Chief Judge of the New York Court of Appeals
In office
January 1, 1927 – March 7, 1932

Associate Judge of the New York Court of Appeals
In office
February 1914 – December 31, 1926

Born May 24, 1870(1870-05-24)
New York City, New York
Died July 9, 1938 (aged 68)
Port Chester, New York
Religion Agnostic

Benjamin Nathan Cardozo (May 24, 1870 – July 9, 1938) was a well-known American lawyer and associate Supreme Court Justice. Cardozo is remembered for his significant influence on the development of American common law in the 20th century, in addition to his modesty, philosophy, and vivid prose style. Although Cardozo only served on the Supreme Court from 1932 until his death six years later, the majority of his landmark decisions were delivered during his eighteen year tenure on the New York Court of Appeals, the highest court of that state.



Cardozo was born in New York City, the son of Rebecca Washington (née Nathan) and Albert Jacob Cardozo.[2] Both Cardozo's maternal grandparents, Sara Seixas and Isaac Mendes Seixas Nathan, and his paternal grandparents, Ellen Hart and Michael H. Cardozo, were Sephardi Jews of the Portuguese Jewish community affiliated with Manhattan's Congregation Shearith Israel; their families immigrated from England before the American Revolution, and were descended from Jews who left the Iberian Peninsula for Holland during the Inquisition.[2] Cardozo family tradition held that their ancestors were Marranos from Portugal,[2] although Cardozo's ancestry has not been firmly traced to Portugal.[3] "Cardoso", "Seixas" and "Mendes" are common Portuguese surnames.

Cardozo was a twin, with his sister Emily. He was a cousin of the poet Emma Lazarus. He was named for his uncle, Benjamin Nathan, a vice president of the New York Stock Exchange and the victim of a famous unsolved murder case in 1870.

Albert Cardozo was himself a judge on the Supreme Court of New York (the state's general trial court) until he was implicated in a judicial corruption scandal, sparked by the Erie Railway takeover wars, in 1868. The scandal led to the creation of the Association of the Bar of the City of New York and Albert's resignation from the bench. After leaving the court, he practiced law until his death in 1885.


Early years

Rebecca Cardozo died in 1879 when Benjamin was quite young. He was raised during much of his childhood by his sister Nell, who was 11 years older. One of his tutors was Horatio Alger.[4] At age 15, Cardozo entered Columbia University[4] where he was elected to Phi Beta Kappa,[5] and then went on to Columbia Law School in 1889. Cardozo wanted to enter a profession that could materially aid himself and his siblings, but he also hoped to restore the family name, sullied by his father's actions as a judge. When Cardozo entered Columbia Law School, the program was only two years long; in the midst of his studies, however, the faculty voted to extend the program to three years. Cardozo declined to stay for an extra year, and thus left law school without a law degree.[6] He passed the bar in 1891 and began practicing appellate law alongside his older brother.[4] Benjamin Cardozo practiced law in New York City until 1914.[4] In November 1913, Cardozo was narrowly elected to a 14-year term on the New York Supreme Court, taking office on January 1, 1914.

New York Court of Appeals

In February 1914, Cardozo was designated to the New York Court of Appeals under the Amendment of 1899,[7] and reportedly was the first Jew to serve on the Court of Appeals. In January 1917, he was appointed to a regular seat on the Court of Appeals to fill the vacancy caused by the resignation of Samuel Seabury, and in November 1917, he was elected on the Democratic and Republican tickets to a 14-year term on the Court of Appeals. In 1926, he was elected, on both tickets again, to a 14-year term as Chief Judge. He took office on January 1, 1927, and resigned on March 7, 1932 to accept an appointment to the United States Supreme Court.

His tenure was marked by a number of original rulings, in tort and contract law in particular. This is partly due to timing; rapid industrialization was forcing courts to look anew at old common law components to adapt to new settings.[4] In 1921, Cardozo gave the Storrs Lectures at Yale University, which were later published as The Nature of the Judicial Process (On line version), a book that remains valuable to judges today. Shortly thereafter, Cardozo became a member of the group that founded the American Law Institute, which crafted a Restatement of the Law of Torts, Contracts, and a host of other private law subjects. He wrote three other books that also became standards in the legal world.[4]

United States Supreme Court

Justice Cardozo in his robes

In 1932, President Herbert Hoover appointed Cardozo to the Supreme Court of the United States to succeed Justice Oliver Wendell Holmes. The New York Times said of Cardozo's appointment that "seldom, if ever, in the history of the Court has an appointment been so universally commended."[8] Democratic Cardozo's appointment by a Republican president has been referred to as one of the few Supreme Court appointments in history not motivated by partisanship or politics, but strictly based on the nominee's contribution to law.[9] However, Hoover was running for re-election, eventually against Franklin Roosevelt, so a larger political calculation may have been operating.

Cardozo was confirmed by a unanimous voice vote in the Senate on February 24.[10] On a radio broadcast on March 1, 1932, the day of Cardozo's confirmation, Clarence C. Dill, Democratic Senator for Washington, called Hoover's appointment of Cardozo "the finest act of his career as President".[11] The entire faculty of the University of Chicago Law School had urged Hoover to nominate him, as did the deans of the law schools at Harvard, Yale, and Columbia. Justice Harlan Fiske Stone strongly urged Hoover to name Cardozo, even offering to resign to make room for him if Hoover had his heart set on someone else (Stone had in fact suggested to Calvin Coolidge that he should nominate Cardozo rather than himself back in 1925).[12] Hoover, however, originally demurred: there were already two justices from New York, and a Jew on the court; in addition, Justice James McReynolds was a notorious anti-Semite. When the chairman of the Senate Foreign Relations Committee, William E. Borah of Idaho, added his strong support for Cardozo, however, Hoover finally bowed to the pressure.

Cardozo was a member of the Three Musketeers along with Brandeis and Stone, which was considered to be the liberal faction of the Supreme Court. In his years as an Associate Justice, he handed down opinions that stressed the necessity for the tightest adherence to the tenth amendment.


In late 1937, Cardozo had a heart attack, and in early 1938, he suffered a stroke. He died on July 9, 1938, at the age of 68 and was buried in Beth-Olam Cemetery in Queens.[13] His death came at a time of much transition for the court, as many of the other justices died or retired during the late 1930s and early 1940s.

Personal life

As an adult, Cardozo no longer practiced his faith (he identified himself as an "agnostic"), but remained proud of his Jewish heritage.[14]

Of the six children born to Albert and Rebecca Cardozo, only Emily, his twin sister, married, and she and her husband did not have any children. As far as is known, Benjamin Cardozo led a celibate life. The fact that Cardozo was unmarried and was personally tutored by the writer Horatio Alger (who had been accused of inappropriate sexual relations with young boys) has led some of Cardozo's biographers to insinuate that Cardozo was homosexual, but no real evidence exists to corroborate this possibility. Constitutional law scholar Jeffrey Rosen noted in a New York Times Book Review of Richard Polenberg's book on Cardozo:

Polenberg describes Cardozo's lifelong devotion to his older sister Nell, with whom he lived in New York until her death in 1929. When asked why he had never married, Cardozo replied, quietly and sadly, I never could give Nellie the second place in my life. Polenberg suggests that friends may have stressed Cardozo's devotion to his sister to discourage rumors that he was sexually dysfunctional, or had an unusually low sexual drive or was homosexual. But he produces no evidence to support any of these possibilities, except to note that friends, in describing Cardozo, used words like beautiful, exquisite, sensitive or delicate.[15]

Andrew Kaufman, a Harvard Law School professor and Cardozo biographer, notes that "Although one cannot be absolutely certain, it seems highly likely that Cardozo lived a celibate life." Judge Learned Hand is quoted in the book as saying about Cardozo: "He [had] no trace of homosexuality anyway."[16]

The question of Cardozo's ethnicity

Cardozo was the second Jew, after Louis Brandeis, to be appointed to the Supreme Court.

Since Cardozo was a member of the Spanish and Portuguese Jewish community, there has been recent discussion as to whether he should be considered the 'first Hispanic justice,' a notion which is disputed.[17][18][19] Cardozo-biographer Kaufman, for example, questioned the usage of the term "Hispanic" in the justice's lifetime, stating: "Well, I think he regarded himself as a Sephardic Jew whose ancestors came from the Iberian Peninsula.”[20]

It has also been asserted that Cardozo himself "confessed in 1937 that his family preserved neither the Spanish language nor Iberian cultural traditions".[21] Both the National Association of Latino Elected Officials and the Hispanic National Bar Association consider Sonia Sotomayor to be the first unequivocally Hispanic justice.[17][20]

Famous opinions

  • Meinhard v. Salmon, concerning fiduciary duty of business partners -- "Not honesty alone, but the punctilio of an honor the most sensitive."
  • Wood v. Lucy, Lady Duff-Gordon was both a minor cause célèbre at the time and an influential development in the law of contract consideration.
  • Palsgraf v. Long Island Rail Road Co. in 1928 was important in the development of the concept of the proximate cause in tort law.
  • MacPherson v. Buick Motor Co. helped signal the end of the law's attachment with privity as a source of duty in products liability. It is one of Cardozo's landmark decisions wherein he ruled that manufacturers of products could be held liable for injuries to consumers who had purchased the product from a retailer rather than directly from the manufacturer.[22] This is the foundational doctrine underlying nearly all modern product liability lawsuits.
  • DeCicco v. Schweizer, where Cardozo approached the issue of third party beneficiary law in a contract for marriage case.
  • Jacob & Youngs v. Kent, in which Cardozo argued that expectation damages arising from a breach of contract are limited to the diminution of the property's value if the undoing of the breach was an economic waste.
  • Hynes v. New York Central Railroad Company, 231 N.Y. 229, 131 N.E. 898 (N.Y. 1921), which held that the defendant railway owed a duty of care despite the victims being trespassers.
  • Berkey v. Third Avenue Railway, 244 N.Y. 84 (1926), in which Cardozo pierced the corporate veil saying that the parent subsidiary relationship is a legal metaphor: "The whole problem of the relation between parent and subsidiary corporations is one that is still enveloped in the mists of metaphor. Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it. We say at times that the corporate entity will be ignored when the parent corporation operates a business through a subsidiary which is characterized as an 'alias' or a 'dummy.'... Dominion may be so complete, interference so obtrusive, that by the general rules of agency the parent will be a principal and the subsidiary an agent." (pp. 93–94)
  • Ultramares v. Touche, 174 N.E. 441.
  • Panama Refining Co. v. Ryan, in which he dissented from a narrow interpretation of the Commerce Clause.
  • Palko v. Connecticut, rationalizing the Court's previous holdings that incorporated specific portions of the Bill of Rights against the states via the Due Process Clause of the Fourteenth Amendment by declaring that the due process clause incorporated those rights which were "implicit in the concept of ordered liberty." Though Palko's specific result (namely the refusal to incorporate the double jeopardy clause upon the states) was overturned in 1969's Benton v. Maryland, Cardozo's broader analysis of the Due Process Clause has never been displaced.
  • Welch v. Helvering, which concerns Internal Revenue Code Section 162 and the meaning of "ordinary" business deductions.
  • Murphy v. Steeplechase Amusement Park, where Cardozo denied a right to recover for a knee injury from riding "The Flopper" because plaintiff Murphy had legally "assumed the risk."
  • Wagner v. International Railway, which created the rescue doctrine, holding that if a tortfeasor creates a circumstance that places the tort victim in danger, the tortfeasor is liable not only for the harm caused to the victim, but also the harm caused to any person injured in an effort to rescue that victim. "Danger invites rescue. The cry of distress is the summons to relief [...] The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had."

In his own words

Cardozo's opinion of himself shows some of the same flair as his legal opinions:

In truth, I am nothing but a plodding mediocrity—please observe, a plodding mediocrity—for a mere mediocrity does not go very far, but a plodding one gets quite a distance. There is joy in that success, and a distinction can come from courage, fidelity and industry.

Buildings and organizations named after Cardozo



  1. ^ "Federal Judicial Center: Benjamin Cardozo". 2009-12-12. Retrieved 2009-12-12.  
  2. ^ a b c Kaufman, Andrew L. (1998). Cardozo. Harvard University Press. pp. 6–9. ISBN 0674096452.  
  3. ^ Mark Sherman, First Hispanic justice? Some say it was Cardozo, The Associated Press, 2009.
  4. ^ a b c d e f Christopher L. Tomlins (2005). The United States Supreme Court. Houghton Mifflin. pp. 467. Retrieved 2008-10-21.  
  5. ^ Supreme Court Justices Who Are Phi Beta Kappa Members, ‘’Phi Beta Kappa website’’, accessed Oct 4, 2009
  6. ^ Levy, Beryl Harold (November 2007). "Realist Jurisprudence and Prospective Overruling". New York Review of Books LIV (17): 10, n. 31.  
  7. ^ Designation in NYT on February 3, 1914
  8. ^ "Cardozo is named to Supreme Court". New York Times. 1932-02-16.  
  9. ^ James Taranto, Leonard Leo (2004). Presidential Leadership. Wall Street Journal Books. Retrieved 2008-10-20.  
  10. ^ (New York Times, February 25, 1932, p. 1)
  11. ^ (New York Times, March 2, 1932, p. 13)
  12. ^ (Handler, 1995)
  13. ^ Benjamin Cardozo memorial at Find a Grave. See also, Christensen, George A. (1983) Here Lies the Supreme Court: Gravesites of the Justices, Yearbook. Supreme Court Historical Society. Christensen, George A., Here Lies the Supreme Court: Revisited, Journal of Supreme Court History, Volume 33 Issue 1, Pages 17 - 41 (19 Feb 2008), University of Alabama.
  14. ^ Jewish Virtual Library, Benjamin Cardozo.
  15. ^ Jeffrey Rosen, NYT Nov. 2, 1997
  16. ^ See Andrew Kaufman, Cardozo (Cambridge: Harvard University Press, 2000) at 89.
  17. ^ a b "'Cardozo was first, but was he Hispanic?,' USA Today, May 27, 2009". Retrieved 2009-06-02.  
  18. ^ "Mark Sherman, 'First Hispanic Justice? Some Say It Was Cardozo,' Associated Press May 26, 2009". Retrieved 2009-06-02.  
  19. ^ "Robert Schlesinger, Would Sotomayor be the First Hispanic Supreme Court Justice or Was it Cardozo? US News & World Report May 29, 2009".  
  20. ^ a b "Neil A. Lewis, 'Was a Hispanic Justice on the Court in the ’30s?,' New York Times, May 26, 2009".  
  21. ^ Aviva Ben-Ur, "East Meets West: Sephardic Strangers and Kin," Sephardic Jews in America: A Diasporic History (New York: New York University Press, 2009), p. 86.
  22. ^ "Understanding Federal and State Courts: Case Study"]. United States government. Retrieved 2008-10-21.  
  23. ^ * * * Benjamin N. Cardozo Lodge at

Further reading

  • Abraham, Henry J. (1999). Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton (Revised ed.). Lanham: Rowman & Littlefield. ISBN 0847696049.  
  • Cardozo, Benjamin N. (1957). An Introduction to Law. Cambridge: Harvard Law Review Association. (Chapters by eight distinguished American judges).
  • Cunningham, Lawrence A. (1995). "Cardozo and Posner: A Study in Contracts". William & Mary Law Review 36: 1379.  
  • Cardozo, Benjamin N. [1870-1938]. Essays Dedicated to Mr. Justice Cardozo. [N.p.]: Published by Columbia Law Review, Harvard Law Review, Yale Law Journal, 1939. [143] pp. Contributors: Harlan Fiske Stone, the Rt. Hon. Lord Maugham, Herbert Vere Evatt, Learned Hand, Irving Lehman, Warren Seavey, Arthur L. Corbin, Felix Frankfurter. Also includes a reprint of Cardozo’s essay “Law And Literature” with an foreword by James M. Landis.
  • Cushman, Clare (2001). The Supreme Court Justices: Illustrated Biographies, 1789–1995 (2nd ed.). (Supreme Court Historical Society, Congressional Quarterly Books). ISBN 1568021267.  
  • Frank, John P. (1995). Friedman, Leon; Israel, Fred L.. eds. The Justices of the United States Supreme Court: Their Lives and Major Opinions. Chelsea House Publishers. ISBN 0791013774.  
  • Frankfurter, Felix, Mr. Justice Cardozo and Public Law, Columbia Law Review 39 (1939): 88–118, Harvard Law Review 52 (1939): 440–470, Yale Law Journal 48 (1939): 458–488.
  • Hall, Kermit L., ed (1992). The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press. ISBN 0195058356.  
  • Handler, Milton (1995). "Stone's Appointment by Coolidge". The Supreme Court Historical Society Quarterly 16 (3): 4.  
  • Kaufman, Andrew L. (1998). Cardozo. Cambridge, MA: Harvard University Press. ISBN 0674096452.  
  • Martin, Fenton S.; Goehlert, Robert U. (1990). The U.S. Supreme Court: A Bibliography. Washington, D.C.: Congressional Quarterly Books. ISBN 0871875543.  
  • Polenberg, Richard (1997). The World of Benjamin Cardozo: Personal Values and the Judicial Process. Cambridge, Massachusetts: Harvard University Press. pp. 320. ISBN 0674960513; ISBN 978-0674960510.  
  • Posner, Richard A. (1990). Cardozo: A Study in Reputation. University of Chicago Press. ISBN 0226675556.  
  • Seavey, Warren A., Mr. Justice Cardozo and the Law of Torts, Columbia Law Review 39 (1939): 20–55, Harvard Law Review 52 (1939): 372–407, Yale Law Journal 48 (1939): 390–425
  • Urofsky, Melvin I. (1994). The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing. pp. 590. ISBN 0815311761.  

See also

External links

Legal offices
Preceded by
Frank H. Hiscock
Chief Judge of the New York Court of Appeals
1927 – 1932
Succeeded by
Cuthbert W. Pound
Preceded by
Oliver Wendell Holmes, Jr.
Associate Justice of the Supreme Court of the United States
1932 - 1938
Succeeded by
Felix Frankfurter


Up to date as of January 14, 2010

From Wikiquote

Freedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom.

Benjamin Nathan Cardozo (24 May 18709 July 1938) was a long-time Justice of the Court of Appeals of New York, where his opinions included many declarations that would become famous in legal circles; he was appointed to the Supreme Court of the United States in 1932.



  • Membership in the bar is a privilege burdened with conditions.
    • In re Rouss, 221 N.Y. 81, 84 (1917).
  • The defendant styles herself "a creator of fashions." Her favor helps a sale. Manufacturers of dresses, millinery and like articles are glad to pay for a certificate of her approval. The things which she designs, fabrics, parasols and what not, have a new value in the public mind when issued in her name. She employed the plaintiff to help her to turn this vogue into money.
    • Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 118 N.E. 214 (1917). This opening paragraph has been debated among legal practitioners, some of whom take its tone to be a sly rebuke by Cardozo of a profession which he considered to have an exaggerated influence.
  • The law has outgrown its primitive stage of formalism when the precise word was the sovereign talisman, and every slip was fatal. It takes a broader view to-day. A promise may be lacking, and yet the whole writing may be "instinct with an obligation," imperfectly expressed. If that is so, there is a contract.
  • Justice is not to be taken by storm. She is to be wooed by slow advances. Substitute statute for decision, and you shift the center of authority, but add no quota of inspired wisdom.
    • Lecture at Yale University Law School (1923) as quoted in The American Journal of International Law Vol. 29 (1935), p. 32.
  • Danger invites rescue. ... The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.
    • Wagner v. International Railway Co., 232 N.Y. 13 (1926), setting forth the rescue doctrine which holds negligent parties liable not only for injury to the victim, but to those who attempt to rescue the victim.
  • Inaction without more is not tantamount to choice.
    • Richard v. Credit Suisse, 242 N.Y. 346, 351 (1926).
  • The whole problem of the relation between parent and subsidiary corporations is one that is still enveloped in the mists of metaphor. Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it. We say at times that the corporate entity will be ignored when the parent corporation operates a business through a subsidiary which is characterized as an 'alias' or a 'dummy.'... Dominion may be so complete, interference so obtrusive, that by the general rules of agency the parent will be a principal and the subsidiary an agent.
    • Berkey v. Third Avenue Railway, 244 N.Y. 84, 94, 155 N.E. 58, 61 (1926). Sometimes misquoted as referring to "figures of speech" rather than metaphors, or with other minor variations.
  • Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.
  • With traps and obstacles and hazards confronting us on every hand, only blindness or indifference will fail to turn in all humility, for guidance or for warning, to the study of examples.
    • "Law and Literature" in Law and Literature and Other Essays and Addresses (1931), p. 9.
  • As I search the archives of my memory I seem to discern six types or methods which divide themselves from one another with measurable distinctness. There is the type magisterial or imperative; the type laconic or sententious; the type conversational or homely; the type refined or artificial, smelling of the lamp, verging at times upon preciosity or euphuism; the demonstrative or persuasive; and finally the type tonsorial or agglutinative, so called from the shears and the pastepot which are its implements and emblem.
    • On types of judicial writing, in "Law and Literature" in Law and Literature and Other Essays and Addresses (1931), p. 10.
  • Method is much, technique is much, but inspiration is even more.
    • "The Game of the Law" In Law and Literature and Other Essays and Addresses (1931), p. 163.
  • Expediency may tip the scales when arguments are nicely balanced.
    • Woolford Realty Co., Inc., v. Rose, 286 U.S. 319, 330 (1932).
  • Prophecy, however honest, is generally a poor substitute for experience.
    • West Ohio Gas Co. v. Public Utilities Commission (No.2), 294 U.S. 79, 82, (1935).
  • Price security, we are told, is only a special form of sanitary security; the economic motive is secondary and subordinate; the state intervenes to make its inhabitants healthy, and not to make them rich. On that assumption we are asked to say that intervention will be upheld as a valid exercise by the state of its internal police power, though there is an incidental obstruction to commerce between one state and another. This would be to eat up the rule under the guise of an exception. Economic welfare is always related to health, for there can be no health if men are starving. Let such an exception be admitted, and all that a state will have to do in times of stress and strain is to say that its farmers and merchants and workmen must be protected against competition from without, lest they go upon the poor relief lists or perish altogether. To give entrance to that excuse would be to invite a speedy end of our national solidarity. The Constitution was framed under the dominion of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.
  • In truth, I am nothing but a plodding mediocrity — please observe, a plodding mediocrity — for a mere mediocrity does not go very far, but a plodding one gets quite a distance. There is joy in that success, and a distinction can come from courage, fidelity and industry.
    • As quoted in Nine Old Men (1936) by Drew Pearson and Robert Sharon Allen, p. 221.
  • Freedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom.

The Altruist in Politics (1889)

Commencement address at Columbia College (1889)
  • There comes not seldom a crisis in the life of men, of nations, and of worlds, when the old forms seem ready to decay, and the old rules of action have lost their binding force. The evils of existing systems obscure the blessings that attend them; and, where reform is needed, the cry is raised for subversion.
  • Again and again, the altruist has arisen in politics, has bidden us share with others the product of our toil, and has proclaimed the communistic dogma as the panacea for our social ills. So today, amid the buried hopes and buried projects of the past, the doctrine of communism still lives in the minds of men. Under stress of misfortune, or in dread of tyranny, it is still preached in modern times as Plato preached it in the world of the Greeks.
    Yet it is indeed doubtful whether, in the history of mankind, a doctrine was ever taught more impracticable or more false to the principles it professes than this very doctrine of communism. In a world where self-interest is avowedly the ruling motive, it seeks to establish at once an all-reaching and all-controlling altruism. In a world where every man is pushing and fighting to outstrip his fellows, it would make him toil with like vigor for their common welfare. In a world where a man's activity is measured by the nearness of reward, it would hold up a prospective recompense as an equal stimulant to labor. ... In the future, when the remoteness of his reward shall have weakened the laborer's zeal, we shall be able to judge more fairly of the blessings that the communist offers.
  • It is the refutation alike of communism and socialism that they thwart the instinct of expansion; that they substitute for individual energy the energy of the government; that they substitute for human personality the blind, mechanical power of the State. The one system, as the other, marks the end of individualism. The one system, as the other, would make each man the image of his neighbor. The one system, as the other, would hold back the progressive, and, by uniformity of reward, gain uniformity of type.
    I can look forward to no blissful prospect for a race of men that, under the dominion of the State, at the cost of all freedom of action, at the cost, indeed, of their own true selves, shall enjoy, if one will, a fair abundance of the material blessings of life. ... Into that prison of socialism, with broken enterprise and broken energy, as serfs under the mastery of the State, while human personality is preferred to unreasoning mechanism, mankind must hesitate to step.

The Nature of the Judicial Process (1921)

  • There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them — inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs. ... In this mental background every problem finds it setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own.
    • Pages 12-13.
  • It is well enough to say that we shall be consistent, but consistent with what? . . . The origins of the rule? The course and tendency of development? With logic or philosophy? With the fundamental conceptions of jurisprudence? All these loyalties are possible. All have sometimes prevailed.
    • Page 64.
  • My analysis of the judicial process comes then to this, and little more: logic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces dominate depends largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired. ... The most fundamental social interest is that law shall be uniform and impartial. ... Uniformity ceases to be a good when it becomes uniformity of oppression.
    • Page 112.
  • If you ask how he is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief, from life itself.
    • Page 113.
  • I am ready to concede that the rule of adherence to precedent, though it ought not to be abandoned, ought to be in some degree relaxed. I think that when a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with the social welfare, there should be less hesitation in frank avowal and full abandonment. ... That court best serves the law which recognizes that the rules of law which grew up in a remote generation may, in the fullness of experience, be found to serve another generation badly, and which discards the old rule when it finds that another rule of law represents what should be according to the established and settled judgment of society.
    • Pages 150-51.
  • We like to picture to ourselves the field of law as accurately mapped and plotted. We draw our little lines, and they are hardly down before we blur them. As in time and space, so here. Divisions are working hypotheses, adopted for convenience. ... So also the duty of a judge becomes itself a question of degree, and he is a useful judge or a poor one as he estimates the measure accurately or loosely. He must balance all his ingredients, his philosophy, his logic, his analogies, his history, his customs, his sense of right, and all the rest, and adding a little here and taking out a little there, must determine, as wisely as he can, which weight shall tip the scales.
    • Page 161.
  • The judicial process, as was said at the outset of these lectures, is a process of search and comparison, and little else.
    • Page 163.
  • I have spoken of the forces of which judges avowedly avail to shape the form and content of their judgments. Even these forces are seldom fully in consciousness. They lie so near the surface, however, that their existence and influence are not likely to be disclaimed. But the subject is not exhausted with the recognition of their power. Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge.
    • Page 167.
  • The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.
    • Page 168.
  • I sometimes think that we worry ourselves overmuch about the enduring consequences of our errors. They may work a little confusion for a time. In the end, they will be modified or corrected or their teachings ignored. The future takes care of such things. In the endless process of testing and retesting, there is a constant rejection of the dross, and a constant retention of whatever is pure and sound and fine.
    • Page 179.

The Growth of the Law (1924)

  • In our worship of certainty we must distinguish between the sound certainty and the sham, between what is gold and what is tinsel; and then, when certainty is attained, we must remember that it is not the only good; that we can buy it at too high a price; that there is danger in perpetual quiescence as well as in perpetual motion; and that a compromise must be found in a principle of growth.
    • Page 17.
  • Magic words and incantations are as fatal to our science as they are to any other. Methods, when classified and separated, acquire their true bearing and perspective as a means to an end, not as ends in themselves. We seek to find peace of mind in the word, the formula, the ritual. The hope is illusion.
    • Pages 66 - 67.
  • I do not underrate the yearning for mechanical and formal tests. They are possible and useful in zones upon the legal sphere. The pain of choosing is the pain of marking off such zones from others. It is a pain we must endure, for uniformity of method will carry us upon the rocks. The curse of this fluidity, of an ever shifting approximation, is one the law must bear, or other curses yet more dreadful will be invited in exchange.
    • Pages 67 - 68.
  • Code is followed by commentary, and commentary by revision, and thus the task is never done.
    • Page 132.

The Paradoxes of Legal Science (1928)

  • The reconciliation of the irreconcilable, the merger of antitheses, the synthesis of opposites, these are the great problems of the law... We have the claims of stability to be harmonized with those of progress. We are to reconcile liberty with equality, and both of them with order. The property rights of the individual we are to respect, yet we are not to press them to the point at which they threaten the welfare or the security of the many. We must preserve to justice its universal quality, and yet leave to it the capacity to be individual and particular.
  • The state in commissioning its judges has commanded them to judge, but neither in constitution nor in statute has it formulated a code to define the manner of their judging. The pressure of society invests new forms of conduct in the minds of the multitude with the sanction of moral obligation, and the same pressure working upon the mind of the judge invests them finally through his action with the sanction of the law.
  • Our course of advance... is neither a straight line nor a curve. It is a series of dots and dashes.
  • It comes down to this. There are certain forms of conduct which at any given place and epoch are commonly accepted under the combined influence of reason, practice and tradition, as moral or immoral. ... Law accepts as the pattern of its justice the morality of the community whose conduct it assumes to regulate. In saying this, we are not to blind ourselves to the truth that uncertainty is far from banished. Morality is not merely different in different communities. Its level is not the same for all the component groups within the same community. A choice must still be made between one group standard and another. We have still to face the problem, at which one of these levels does the social pressure become strong enough to convert the moral norm into a jural one? All that we can say is that the line will be higher than the lowest level of moral principle and practice, and lower than the highest. The law will not hold the crowd to the morality of saints and seers. It will follow, or strive to follow, the principle and practice of the men and women of the community whom the social mind would rank as intelligent and virtuous.
  • A judge is to give effect in general not to his own scale of values, but to the scale of values revealed to him in his readings of the social mind. ... Objective tests may fail him, or may be confused as to bewilder. He must then look within himself.
  • What has once been settled by a precedent will not be unsettled overnight, for certainty and uniformity are gains not lightly sacrificed. Above all is this true when honest men have shaped their conduct on the faith of the pronouncement.
  • They do things better with logarithms.
    • Commenting on the uncertainty of the law.
  • Bills of rights give assurance to the individual of the preservation of his liberty. They do not define the liberty they promise.

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