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  • The Next Cardozo? Let's Hope Not

    Judge Sonia Sotomayor announced today her admiration for Justice Benjamin Cardozo, who served for 6 years on the Supreme Court after nearly 30 on the New York Court of Appeals. Let’s hope she misspoke, as she has admitted to doing frequently in her speeches and written remarks.

    Cardozo, she said, believes that “the facts drive the law and the conclusion that the law will apply to that case,” and had “great respect” for precedent, the legislative branch, and the Constitution.

    Unfortunately for Cardozo, the facts and the law were often at odds. Cardozo is renowned for the “quick development” of the law of tort and products liability that occurred under his watch in New York State. When a consumer went up against a corporation in Cardozo’s court, there was little doubt in which direction his empathy, as well as the law of the case, would flow.

    In MacPherson v. Ford, for example, Cardozo created modern products liability–and the tort crisis that now afflicts us. In Palsgraf v. Long Island Railroad, he dramatically expanded the reach of tort liability, and confused generations of law students with flowery language and vague standards. And in a variety of cases, he gave lower courts license to look far beyond the four corners of a written contract to determine its meaning.

    His work on the Supreme Court was also problematic. In Steward Machine Co. v. Davis and Helvering v. Davis, for example, he gave the Court’s blessing to Social Security and rendered the 10th Amendment a nullity.

    Cardozo was perhaps the leading legal realist, believing that judges should sit as philosopher-kings, determining complex issues of public policy that previously had been the domain of the political branches.

    So let’s hope Judge Sotomayor doesn’t intend to be an activist on the Supreme Court and merely, once again, misspoke.

    Posted in Legal [slideshow_deploy]

    4 Responses to The Next Cardozo? Let's Hope Not

    1. Harry, Illinois says:

      These hearings are nothing but a dog and pony show. BO has already warned congress not to block this "Wise Latina's nomination. Patrick LayHe has already stated that she will be confirmed. So why the waste of taxpayers money?

    2. Pingback: The Next Cardozo? Let’s Hope Not « Conservative Thoughts and Profundity

    3. Roger S., MA. says:

      Taxpayers money is not being wasted in these hearings. Even if the foreseeable result will be a "done deal", it would be good to have on record this "deal"-nature of the "ramroding" of somebody completely unsuitable. There is always the later potential, of an impeachment, for example if it can be shown that she lied to the Senate about something significant. There is also the likelihood that BO's currently high approval rating will decline significantly and the possibility that after the 2010 elections the Dem majority will have taken a significant fall.

      "Rubber-stamping" Sonia when this is the last opportunity to expose her "true colors", now that would be a waste of taxpayers' money!

    4. Professor Jeffrey A. says:

      Have you read Palsgraf lately? I have; I have taught torts in law schools for a decade. I'd hardly call it a pro-plaintiff decision! Particularly since Cardozo's majority opinion for a 4-3 divided New York Court of Appeals non-suited a plaintiff injured by an explosion on a railway platform, no less — a place where the railroad, under well-established 19th century precedent, owed her a duty "of the highest degree of care." Cardozo not only utterly ignores this rule; he went so far as to slant the factual statement of the case to favor the railroad and disfavor her. If anything, Cardozo greatly restricted the expanse of negligence liability — by taking the question of proximate causation, which as dissenting Judge Andrews pointed out had always before been for the jury — and recasting into a question of the scope of the duty of reasonable, which is solely for the trial judge. Thus, Cardozo gave N.Y. judges a powerful jury control tool in negligence cases — the judge on a motion for summary judgment need only find, as a matter of law, that the defendant owed no duty to the plaintiff, and there would be no jury trial and no risk of "big" damages awards. If anything, Cardozo was acting as an early tort reformist in Palsgraf.

      Even Richard Posner, in his Cardozo: A Study In Reputation, takes pause over the liberties Cardozo took with the facts to get his way — a conservative, pro-business way — and, as John T. Noonan pointed out in his 1970s book, Persons And Masks of the Law, Cardozo went so far to stick it to plaintiff Palsgraf that he ordered her — disabled and unemployed as a result of the explosion on the Long Island R.R. — to pay the Railroad's appellate costs: something rarely done, particularly where the plaintiff's case had enough merit to produce a divided court in the N.Y. State Appellate Division.

      Thus, I find it simply amazing that the author of the post can assert that this was an "expansion." Perhaps the charge made about Cardozo's writing is more valid one, since the posting so inaccurately characterizes the essence of the Palsgraf opinion.

      A keyboard and an internet connection — and viola! — you, too, can be a pundit. Why study the facts, when one can assume them as they wish? As I lament to my law students, the internet is remarkable primarily in the sense that never before has so much ignorance been so quickly disseminated so widely.

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