Cardozo: A Study in Reputation

If I recall his New Yorker profile accurately, Posner gets up at 4 a.m. every morning to maintain his extraordinary and excellent output as a public intellectual and judge of the 7th Circuit Court of Appeals. At 145 pages, this volume is perhaps Posner's shortest and--both because it is aimed at a general audience and resulted from a lecture series--one of his most readable. My sense, however, is that it would only appeal to those already steeped in the profession. Not even a law student would find instructive comparisons with Stone, Hand, Friendly, Prosser, or Schaeffer. For those in the profession, however, I recommend this book most highly. It is less valuable for its purported study in reputation than for its profound, if succinct, understanding of Cardozo the man and the insight it provides into the style and logic of some of his best known decisions, Palsgraf and MacPherson chief among them. Posner's original attempt at a quantitative understanding of reputation relies on Cardozo's relative frequency of citation in some Westlaw data bases over the years. It is pseudo-scientific, redolent of Posner's application of economics to an understanding of the law and, while interesting, not very meaningful. The book as a whole, however, is most gratifying.

Judge Posner examines the reasons for Cardozo's reputation and, more important, analyzes the rhetorical methods the judge used in creating some of the most renowned and cited decisions in American law. How and why he crafted the statement of the facts a certain way for one decision, a different way for another; how Cardozo used a lawyer's persuasive skills in reaching results he believed were warranted. Posner also examines the inconsistencies in Cardozo's thinking and opinion-writing. The book presents a portrait of a brilliant, prudent jurist and illuminates his professional shortcomings as well. May have little appeal for the non-lawyer, but for anyone interested in legal writing, the judicial process, and opinion-making, this is a terrific book.

This may be the classic book by Posner. Shorter than most his books--and less encyclopaedic--but also less maiandering. Cardozo: A Study in Reputation stays on track, while revealing a complex sensibility of jurisprudence by Posner and an astounding intuition by Cardozo. In this book we see two great legal minds at work: Cardozo's providing the interpretations that further social welfare and Posner's explaining why these interpretations are so desirable.I 'd rate this book the one MUST READ book if you are thinking about law school. This is what law school is about: Struggling with how to promote social welfare by interpretation and rulemaking.

Judge Posner builds and presents a strong case in defense of Justice Cardozo's reputation as a leading American jurist. Apparently, sometime during the 1950s a revisionary movement emerged in American legal thought that eventually injured Benjamin N. Cardozo. His Hemmingwayesque opinions were criticized as pedestrian, and the logic behind his reasoning was attacked as paternalistic. Judge Posner's thesis (a top-notch dissertation) deflects the subjective defamation and focuses upon objective standards of judicial measurement. Employing the resources of an electronic legal database, he proves that the Cardozo opinions, particularly those written as a judge in NY's Ct. of Appeals, have been consistently cited with regularity. This original test demonstrates that Cardozo's influence on the common law is unrivaled by any jurist other than O W Holmes. Attempting to create a new genre of social science, Judge Posner smoothly integrates the drives that formed Cardozo as a man with the strictures of the law that define a judge. Analysis of the opinions, along with the briefs of the arguments, show that he was a good judge because he was able to reach correct results even when the specific facts of cases seemed to predict a legal anamoly. That quality produced case law that remains hard to reconcile, and the result has been attacks on the decisions as inconsistent. Judge Posner recognizes those weaknesses, but rather than contorting his logic in reconciling them explains that a man's reputation is typically based on either his high points or his low ones. In Cardozo's case, his death after only six years on the US Supreme Court limited the high points to controversial cases, such as MacPherson and Hynes. Judge Posner speculates that had Cardozo, like Holmes, had a full career as a Supreme Court justice the subjective standard for measurement of his reputation would have shifted away from the decisions as a state judge.Although those state court opinions continue to dominate Torts textbooks, Cardozo's critics have injured his reputation by suggesting that he was merely a flamboyant local judge. Judge Posner shows that their slurs have not reached the ears of leading jurists. However, the ordinary person is apt to adopt those reputationary revisions without actually reading Cardozo's opinions and relating them to the specific cases and the development of American common law. Thus, Judge Posner creates a bridge, somewhat like Justice Cardozo, between arcane legal studies and the conduct of the people that law governs.

I just started my law school teaching career by teaching Torts, and I was a bit baffled at Cardozo's fame. Judge Posner explains the extent to which Cardozo stood head and shoulders above other jurists in notoriety, speculates why this is so, shows why Cardozo's reputation as a Supreme Court justice is dimmer than his reputation as a state judge, and dissects Cardozo's opinions. I thought that his discussion of Cardozo's literary style was especially masterful, as was his explanation of Cardozo's advantages in obtaining a great reputation. The only part of the book I found lacking was Posner's discussion of individual cases, which was a bit less exciting than the rest of the book. Before reading the book I was not convinced that the infarmous Palsgraf case deserved its notoriety-- and I still don't get the Palsgraf mystique that seems to entrance so many other law professors and lawyers.