Cardozo: A Study in Reputation

by Richard A. Posner

What makes a great judge? How are reputations forged? Why do some reputations endure, while others crumble? And how can we know whether a reputation is fairly deserved? In this ambitious book, Richard Posner confronts these questions in the case of Benjamin Cardozo. The result is both a revealing portrait of one of the most influential legal minds of our century and a model for a new kind of study—a balanced, objective, critical assessment of a judicial career.

"The present compact and unflaggingly interesting volume . . . is a full-bodied scholarly biography. . . .It is illuminating in itself, and will serve as a significant contribution."—Paul A. Freund, New York Times Book Review

Genres: Law, Nonfiction

163 pages, Hardcover

First published October 15, 1990

About the author

Richard Posner is Senior Lecturer in Law at the University of Chicago Law School.

Following his graduation from Harvard Law School, Judge Posner clerked for Justice William J. Brennan Jr. From 1963 to 1965, he was assistant to Commissioner Philip Elman of the Federal Trade Commission. For the next two years he was assistant to the solicitor general of the United States. Prior to going to Stanford Law School in 1968 as Associate Professor, Judge Posner served as general counsel of the President's Task Force on Communications Policy. He first came to the Law School in 1969, and was Lee and Brena Freeman Professor of Law prior to his appointment in 1981 as a judge of the U.S. Court of Appeals for the Seventh Circuit, where he presided until his retirement on September 2, 2017. He was the chief judge of the court from 1993 to 2000.

Judge Posner has written a number of books, including Economic Analysis of Law (7th ed., 2007), The Economics of Justice (1981), Law and Literature (3rd ed. 2009), The Problems of Jurisprudence (1990), Cardozo: A Study in Reputation (1990), The Essential Holmes (1992), Sex and Reason (1992), Overcoming Law (1995), The Federal Courts: Challenge and Reform (1996), Law and Legal Theory in England and America (1996), The Problematics of Moral and Legal Theory (1999), Antitrust Law (2d ed. 2001), Law, Pragmatism, and Democracy (2003), Catastrophe: Risk and Response (2004), Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (2005), How Judges Think (2008), and A Failure of Capitalism: The Crisis of '08 and the Descent into Depression (2009), as well as books on the Clinton impeachment and Bush v. Gore, and many articles in legal and economic journals and book reviews in the popular press. He has taught administrative law, antitrust, economic analysis of law, history of legal thought, conflict of laws, regulated industries, law and literature, the legislative process, family law, primitive law, torts, civil procedure, evidence, health law and economics, law and science, and jurisprudence. He was the founding editor of the Journal of Legal Studies and (with Orley Ashenfelter) the American Law and Economics Review. He is an Honorary Bencher of the Inner Temple and a corresponding fellow of the British Academy, and he was the President of the American Law and Economics Association from 1995 to 1996 and the honorary President of the Bentham Club of University College, London, for 1998. He has received a number of awards, including the Thomas Jefferson Memorial Foundation Award in Law from the University of Virginia in 1994, the Marshall-Wythe Medallion from the College of William and Mary in 1998, the 2003 Research Award from the Fellows of the American Bar Foundation, also in 2003 the John Sherman Award from the U.S. Department of Justice, the Learned Hand Medal for Exellence in Federal Jurisprudence from the Federal bar Council in 2005, and, also in 2005, the Thomas C. Schelling Award from the John F. Kennedy School of Government at Harvard University.

Reviews

[Luke VanHouten · Rating 4 out of 5]

Judge Posner provides a novel and thoughtful commentary on the work of Justice Cardozo as well as an analysis of his enduring reputation and its cause. The vast majority of the book is focused on Cardozo's time on the NY Court of Appeals, with only a half dozen pages or so being dedicated to his Supreme Court tenure (due to it being so short, the liberal minority, and c.j. Hughes hogging many of the more unified opinions Cardozo would have loved to write, even those concerning torts). Cardozo's judicial philosophy greatly exemplifies Posner's famous pragmatism, but the latter judge often brings into question the validity of Cardozo's methods for his verdicts reached with the lay in mind. Particularly of note are his omissions and alterations of facts and reasonings, with brevity almost being a complete substitute for some justifications of causation and references to precedent. Other times Cardozo would self-contradict himself between decisions. Yet barring this last fact his decisions were just and pragmatic; he improved the livelihoods of those living in New York, along with other states given the amount of times Cardozo was cited by their courts. Posner's evaluation is an objective and balanced one of the liberal justice, considering that the book was written during a time when Posner was shedding his own conservatism for the idiosyncratic liberalism he became known for at the end of his career. Cardozo was less of an enigma.

The underlying focus of the book is on Cardozo's reputation (that surely precedes him), and on judicial reputation as a whole. The Justice's time on the NY bench was so notable that Hoover—a conservative Republican—nominated the liberal Cardozo to the Court on qualifications alone, which simply does not happen today. Posner offers some quantitative methods for measuring Cardozo's reputation, such as his citation count and number of opinions compared to his contemporaries, but his techniques are hazy. The point he is trying to make with them is obviously true, and I do not expect an acclaimed jurist to be the most proficient with statistics. While Posner praises Cardozo's pragmatism, he argues that the basis from his philosophy for his reputation comes from his moderation and non-contentiousness. A recurring comparison is to Orwell, who is claimed by rightists and leftists alike as his work is uncontroversial to both. To Posner, Cardozo's reputation remains strong because he upsets no one. Meanwhile, judicial reputation is now very salient and polarized as justices' confirmation processes have become so drawn out (the reputations surrounding Justices Thomas, Alito, Sotomayor, and the three Trump appointees all dominated their ascents to the Court in the time since this book was published).

However, Posner's primary support for Cardozo's enduring reputation is his prose. The Justice wrote in a florid, poetic manner which served to heighten his pragmatism. Cardozo's elite writing ability paired with his tendency to solidify already existing principles is why he is cited so often, as there is no reason for another judge or scholar to consider a similar opinion that is subordinate in quality, of which there are many. Considering this, it is true that Cardozo's generative impact on law was small, even in the spheres he was most known for, such as torts. Yet, he was perhaps the most effective incrementalist at the time in the necessarily incremental common law, leading to his reputation. His thought-out rhetorical style made his opinions memorable to legal scholars and the public (especially given his pragmatism), and the heavy precedents set by his industrial-age tort case opinions ensure that his words are still considered heavily today. Posner laments how many current opinions are written by law clerks as opposed to judges, arguing that judicial reputation would increase if they returned to focusing on their own rhetoric.

Posner paints an excellent portrait of a jurist and his enduring reputation, and does so in a manner that is enjoyable to both lawyers and non-lawyers. This is a great read for anyone interested in the judiciary, and I found it pairs well contextually with existing literature on the early Roosevelt Court that Cardozo was a member of. It is by no means a perfect book, as Posner's haranguing style bleeds through often, but this is well in line with his thesis that there are no perfect judges.

[Sal M · Rating 4 out of 5]

resident carbozo

[Myles · Rating 2 out of 5]

Posner should stick to legal decisions. Actually, no, those are just as dry, bloated, and unwilling to make bold statements.

[B · Rating 4 out of 5]

Good. Very interesting subject, but not sure it all hangs together.