Comments on: The Next Cardozo? Let’s Hope Not

By: Professor Jeffrey A.

Professor Jeffrey A. — Fri, 04 Sep 2009 04:34:27 +0000

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.

By: Roger S., MA.

Roger S., MA. — Wed, 15 Jul 2009 18:29:27 +0000

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!

By: The Next Cardozo? Let’s Hope Not « Conservative Thoughts and Profundity

The Next Cardozo? Let’s Hope Not « Conservative Thoughts and Profundity — Tue, 14 Jul 2009 20:54:35 +0000

[...] The Next Cardozo? Let’s Hope Not Posted in Heritage.com by nhiemstra on July 14, 2009 via: Heritage [...]

By: Harry, Illinois

Harry, Illinois — Tue, 14 Jul 2009 18:40:04 +0000

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?