Judging New York Style: A Brief Retrospective of Two New York Judges

ANDREW L. KAUFMAN

Editor's Note: This lecture was delivered before the HarvardLaw SchoolAssociation of New York at a meeting of the New York State Bar Association of January 30, 1988.

I have been doing some work recently that has led me to consider the contrasting careers of two New York judges. Coming from the same background, they followed very different paths to the same court, the Supreme Court of New York, and, more importantly, they brought widely divergent attitudes toward judging. One, whom I shall call Judge A for the time being, was a nineteenth-century judge. The other, Judge B, was a twentieth-century judge, although he began practicing law in the nineteenth century.

Judge A came from an old American family, one that was in the country before the Revolution. Early association with one of the prominent practitioners of the day plus family and political connections combined to advance his career rapidly. The family connections derived mainly from his marriage to a socially prominent family. His wife was the daughter of the Vice President of the New York Stock Exchange, a man who was also a prominent lay religious leader and philanthropist. Judge A's political career was in Democratic New York City politics. He allied himself with up and coming Tammany Hall politicians--first Mayor Fernando Wood, perhaps the first of the nineteenth-century urban political bosses, and then with the even more notorious Boss Tweed. These alliances led him to election first to the Court of Common Pleas and then to the Supreme Court of New York.

Judge B was also the descendant of an old American family, both branches of which had been in this country before the American Revolution. But he came from a family that had been disgraced; his father had resigned from the bench just in time to avoid impeachment. Nevertheless, his father had resuscitated his practice and provided for his family. Judge B's preparation for college was the work of his tutor, Horatio Alger, and Judge B performed spectacularly at Columbia College and Law School. He never married but devoted himself almost exclusively to his practice, which increasingly consisted of handling difficult cases at the trial and appellate level for his fellow lawyers. He was a lawyer's lawyer.

I can testify from having read dozens of his briefs that he was well cast in that role. That, however, was his only professional role. Judge B stayed miles away from politics and took very little part in the extracurricular life of the profession. Nevertheless he became rather well known in what is today called the elite portion of the bar. Thus, when one of the recurrent anti-Tammany coalitions was stitched together in 1913, Judge B was selected as nominee for a Supreme Court judgeship to help round out the ticket.

By now you may have figured out the identity of our judges. Judge A was the father of Judge B. Judge A was Albert Cardozo, remembered, if at all, as one of the three judges whose ouster was one of the main spurs to the formation of the Association of the Bar of the City of New York. Judge B was his son, Benjamin N. Cardozo, revered as a saintly and progressive judge, indeed one of the first of our "modern" judges.

The contrast between the judicial careers of father and son is not wholly captured by the contrast between dishonesty and integrity, although parenthetically I must say that I do believe that Albert Cardozo, good family man and pillar of his congregation, was dishonest. The only charge that appears from the record of the hearings looking toward his impeachment to have been demonstrated is that he appointed his nephew to receiverships hundreds of times and often took a fifty per cent share of his fees. However, to capture the contrast between father and son one must go further and examine their contrasting attitudes toward law, toward judging. An editorial from the New York World urged the election to the New York Supreme Court of Judge Cardozo:

The editorial was written in 1867 urging the election of Albert Cardozo although with the advantage of hindsight we know that it was the son and not the father who lived up to the promise of the editorial. The proof with respect to Albert's judicial performance is more elusive on this issue than with respect to his personal behaviour. It is hard to know why judges decide as they do. But the suspicion is strong that Albert Cardozo behaved in accordance with the worst manifestation of the notion that law is a part of politics.

A brief catalogue is in order. The constitutionality of the Excise Law, diminishing the hours for sale of liquor and opposed by Albert's supporters in the German community, came before him. He held the statute unconstitutional and then resisted efforts to facilitate speedy review. At the same time, he demonstrated his awareness of the political consequences of his decision when he wrote a colleague that upholding the statute would have meant his own political death. He added that the judges who had voted to uphold the law would ultimately be condemned by the people although he also proclaimed that he would have boldly upheld the law if he had had different convictions. Fraud in the execution of a lease of property to the City by his old mentor Fernando Wood was alleged. Cardozo refused to permit the City to attempt to prove it on the ground that the allegations set forth insufficient facts. In the struggle between Gould and Fisk on the one hand and Commodore Vanderbilt on the other for control of the Erie R.R., injunctive relief was needed by Gould and Fisk to set aside the order of the regular judge handling such matters.

Cardozo issued the order even before his term to hear such matters began.

Later, the attempt of Gould and Fisk to corner the gold market failed, leaving them with enormous obligations to purchase gold.

An ingenious scheme was hatched to prevent enforcement of these contracts by having the Gold Exchange Bank, the clearing house for transactions on the Gold Exchange, thrown into receivership. Thomas Shearman, a leader in the attack on the massive judicial corruption in New York City, drew the papers, including a blank affidavit, for a plaintiff yet to be found, stating that unnamed officers and agents of the Bank had admitted that it was insolvent and paying favored creditors. Shearman then called in another leader of the bar, and more importantly the partner of Oakey Hall, Mayor of the City, to present the Papers. Who consummated the outrageous procedure? Albert Cardozo. Other examples could be given but perhaps I have said enough to make my point. If the public perception and common sense inferences are justified, then the career of Albert Cardozo is an example of judicial law-making gone wrong, of the perversion of the idea that judge-made law must take account of the facts of political (and social and economic) life. His way was to use the judicial role to advance the political fortunes of himself and his allies.

Describing and defending the proper judicial role was the life work of Albert's son, Benjamin. It would be a mistake to say that he consciously set out to take a different path from Albert. Benjamin was two when his father resigned from the bench and we simply do not know how much he came to know of the details of his father's judicial activities except for his resignation and accompanying disgrace.

Benjamin did not turn his back on the past entirely--although his father was dead when he was admitted to the bar, he did join his father's old law firm. But it is not Benjamin Cardozo's 23 years of practice that are relevant here; it is his approach to the judicial role, which stands in sharp contrast to that of his father.

Benjamin Cardozo presents us with two views of the judge--one from the lecture platform and one from the bench. In some ways the words from the podium have dominated the words from the bench. The Cardozo we honor is to a large extent the Cardozo of The Nature of the Judicial Process. At a time when the notion that judge-made law was regarded by some as dangerously radical, Cardozo eloquently defended the proposition that on some occasions at least it is appropriate and necessary for judges to make new law. In so doing, he addressed two questions that are still being heatedly debated: are the sources of this new judge-made law subjective or objective, and is there a difference between judicial and legislative law-making?

Cardozo's treatment of the first question was typical of his approach to such questions. He began by down playing the importance of the issue and ended by concluding that judging contains elements of both. He down played the issue by stating that sometimes "the controversy has seemed to turn upon the use of words and little more. "But he then concluded that while our jurisprudence commits us to the objective standard, the "perception of objective right takes the color of the subjective mind." And where does the "objective right" come from? To what do judges look? "Customary morality." Whose customary morality? That of ''right–minded men and women"

That is not a wholly happy choice of words. By referring to right-minded men and women, he avoided the charge that judicial law-making is nothing but an intuitive Gallup poll. But he left himself open to two other charges: that modern horror of horrors, elitism, and the further accusation that the term "right-minded men and women" is simply a euphemism for the judge's own values. Cardozo responded by emphasizing the nature of the restraints on judges against imposing their own values. He asserted, and it is the linchpin of his belief in judicial law-making and the rule of law, that the judge's power of innovation is "insignificant when compared with the bulk and pressure of rules that hedge him on every side." A judge

We may say that these are vague and general precepts, so vague indeed as not to restrict judges from doing anything they wish.

Perhaps. But they were too vague for Cardozo and for most judges of his generation. There was a felt sense of restriction.

Indeed, his explicit recognition of the arguments for innovation was a revolt against a perceived overrigid conception of restriction. The trick was to see the possibility of reform of judge-made law while keeping some valid sense of viable restriction in the name of "the rule of law." For that was the essence of Cardozo's view of what truly distinguishes judges from legislators.

No one has done much better in describing the process of choice in the difficult cases than what Cardozo spoke 65 years ago: "History or custom or social utility or some compelling sense of justice or sometimes perhaps a semi-intuitive apprehension of the pervading spirit of our law must come to the rescue of the anxious judge and tell him where to go." The emphasis in reading the Cardozo of The Nature of the Judicial Process has been on his defense of innovation as captured in his reference to the "compelling sense of justice" and "the pervading spirit of our law." But that is because not enough attention has been paid to the rest of the lectures, to the references to the importance of logical analysis, history, and custom; perhaps that is because we have thought that Cardozo did not really believe that they were so important. To test that judgment we should take a quick look at his judicial performance.

It is here that I have found my biggest surprise. For here, at least to today's eyes, the major and minor features of The Nature of the Judicial Process are changed--if not reversed, they are at least equalized. Cardozo the innovator dims. Cardozo the judge obeying his perceptions of the limitations of the judicial role emerges.

For many of us, the Cardozo we remember is the Cardozo of MacPherson v. Buick and other like tort cases and the Cardozo of all those wonderful contracts cases where he seems to spin contracts and consideration out of the air so to speak. But to reread those cases all together is to find no clear pronouncement of new doctrines but rather holdings supported by so many qualifications and considerations that it is hard to say which are crucial.

We are told, however, that Cardozo was the master of using qualifications and special facts to advance doctrine case by case until the qualifications and special facts have disappeared and doctrine has advanced a long way. Not so. When we read all the cases, we find that Cardozo believed the qualifications, believed in the ad hoc nature of his great decisions; we find that in fact the cases did depend on all the circumstances he used to distinguish prior cases.

Let me give just a few examples, starting with MacPherson v. Buick. That justly famous decision abolished the privity requirement for suits by the ultimate purchaser of a new car against the manufacturer where the probability of danger (not just possibility, Cardozo emphasized, but probability of danger) to the user if the product is defective ought to have been foreseen. Much has been written about Cardozo's subtlety in bringing about an important modernization of tort law.

And yet the modernization was probably less in New York than in any other jurisdiction in the United States, for in New York a series of five cases involving such products as mislabeled medicine, defective scaffolding, and an exploding coffee pot had brought New York very close to the MacPherson principle. Thus Cardozo's low-key opinion, virtually devoid of a sense of dramatic change and focusing on the application .of general principles of doctrine to new facts, may well be a rather more accurate presentation of his real thinking than has generally been recognized.

Four months after the decision in MacPherson, Cardozo had to deal with the Perry case. A construction company, in violation of statute, stored nitroglycerin caps in tin boxes marked blasting caps. It placed them inside larger storage boxes in a chest on public property alongside the Erie Canal. One Sunday it left the chest unlocked and open. Two boys stole one of the storage boxes and the next day while they and an eight-year old friend were playing with the contents, the caps exploded killing all three boys. This suit involved only the eight-year old boy and the Appellate Division had affirmed a nonsuit against the plaintiff. For one who believes either that doctrinal advance or sympathy for injured plaintiffs help explain the MacPherson language about foreseeability, the outcome in Perry should be clear. And Warren Seavey, writing after Cardozo's death about his influence on the law of torts, falls prey to his expectations, stating that the defendant in Perry was held liable for the foreseeable consequences of the way it stored the nitroglycerin caps. But Seavey's wish was father to his thought. His statement of the holding is wrong. In fact, Cardozo's opinion actually affirmed the nonsuit, picking up language from MacPherson that while it was possible that the box might be stolen, it was not "probable," and probability was the test of foreseeability. It is hard to square Perry with an expansive view of MacPherson.

Then there is the well-known Hynes case, where Cardozo reversed a judgment in favor of a railroad when a boy was injured by high tension wires falling from the railroad's poles notwithstanding that the boy was trespassing on the railroad's property while preparing to dive into the public waterway--and Wagner, where Cardozo reversed another judgment in favor of a railroad when a passenger was injured while attempting to rescue his cousin, who had been thrown from the train through the railroad's negligence. On the other hand, there is the most famous railroad case of all, Palsgraf where Cardozo took a judgment away from a poor woman and formulated his theory that an actor is liable only for violation of a duty owed to the particular injured party and not for violation of a duty owed to someone else. The fact is that for every Cardozo opinion creatively advancing tort law beyond the old doctrine to find liability for an injured party, there is another where Cardozo quite deliberately refuses to do so. He seemed to have been moved by the desire not to have negligent parties held responsible for all consequences that followed from their carelessness. Such a large scale reformulation of doctrine was for the legislature, not the court.

The same approach is also apparent in a study of Cardozo's contract cases. There is a string of cases taught in most contracts courses that is used to show how he manipulated consideration doctrine to "find" the existence of a contract or to "find" consideration where previously no contract or consideration had been thought to exist. If I jog your memory, you will doubtless recall Wood v. Lucy, Lady Duff Gordon, the case where he found that a writing was" 'instinct with an obligation,' imperfectly expressed." If I press even further, you may remember De Cicco v. Schweizer, where a parent's promise to their daughter's fiance to pay their daughter a fixed sum of money per year for life in consideration of the upcoming marriage was held enforceable; and Allegheny College v. National Chautauqua Bank, where a charitable subscription to a fund named in honor of the donor was held enforceable after her death; and Jacob & Youngs v. Kent, where a builder was held to have substantially performed a contract notwithstanding the fact that instead of using the Reading pipe required by the contract's specifications, he used the equivalent Cohoes pipe. All of these cases are used to show Cardozo's commitment to the elevation of a realistic approach to commercial practice over the technicalities of precedent and doctrine.

Yet there is another series of cases less often found in casebooks: Sun Printing & Publishing Assn v. Remington, in which Cardozo refused to enforce a commercial contract where the parties had fixed the price for four months and then left future price open but subject to a maximum; or Murray v. Cunard Shipping Lines, where Cardozo enforced a provision in a shipping line's passenger ticket that required notice of injury to be given within 40 days notwithstanding the fact that plaintiff spent most of the nine-month period before giving notice in the hospital recuperating from the injury caused by the defendant's negligence and notwithstanding the further fact that the passenger did not have the ticket because the defendant had collected it when he boarded the ship; and finally Dougherty v. Salt, where Cardozo allowed oral testimony to refute the recital of consideration in a note given by an aunt to her eight-year-old nephew.

I will not discuss the differences in the details of the cases that were crucial. What is important is that the differences in detail were crucial for Cardozo. He had been a practicing lawyer for 23 years and facts were very important to him. That is a matter that has not always been appreciated in the academy. Cardozo was not an avid creator of wildly new doctrine. He was a slow and cautious creator of expansions of old doctrine. He was most creative not just when the justification was strong but also when the doctrinal step to be taken was small. That approach was reinforced by Cardozo's general approach to theory, whether at the more specific level of doctrine or at the more abstract level of legal theory. Cardozo was a person who listened hard to what people were saying, who attempted to find the applicable insights in all positions, who sought to sieve out the rhetorical extremes of positions, and who sought to minimize differences. In short, he was essentially a compromiser, in the best sense, a person who sought accommodation and as much unification as possible in society.

I do not mean to denigrate Cardozo's achievement. At a time when judges were under heavy attack by political progressives for their failure to adapt the law committed to their care to modern needs and also under heavy pressure from within portions of the legal community to adopt an institutional position heavily bound by precedent that would leave change to the legislature, Cardozo spoke eloquently for the former position. But in defending that view, he quite dearly stated that there were many sources of law to which a judge should look, and he named and discussed the claims of logic, history, and precedent. It should be no surprise then that when we look over the sweep of his opinions, we should find that they reflect the effort of the conscientious judge to give scope to all the elements to which he referred as appropriate sources of law. And he was a conscientious, thinking judge whose most important contribution to the art of judging may well have been the demonstration of the continued viability of the common law style of judging--notwithstanding the possibility of gross manipulation of the sort attributed to Albert and, even more importantly, notwithstanding the attacks on the tradition that have taken increasingly complex, abstract, and philosophical turns in our own day.