The Nature of the Judicial Process [Paperback]

Benjamin N. Cardozo (Author)

Book Description

Publication Date: February 29, 2012

In this legal classic, a former Associate Supreme Court Justice explains the conscious and unconscious processes by which a judge decides a case. In simple, understandable language, he discusses the ways rulings are guided and shaped by information, precedent and custom, and standards of justice and morals.

Editorial Reviews

About the Author

Benjamin Nathan Cardozo (1870 –1938) was a well-known American lawyer and associate Supreme Court Justice. Cardozo is remembered for his significant influence on the development of American common law in the 20th century, in addition to his modesty, philosophy, and vivid prose style. Cardozo served on the Supreme Court only six years, from 1932 until his death in 1938, and the majority of his landmark decisions were delivered during his eighteen year tenure on the New York Court of Appeals, the highest court of that state. In 1932, President Herbert Hoover appointed Cardozo to the Supreme Court of the United States to succeed Justice Oliver Wendell Holmes. The New York Times said of Cardozo's appointment that "seldom, if ever, in the history of the Court has an appointment been so universally commended." Democratic Cardozo's appointment by a Republican president has been referred to as one of the few Supreme Court appointments in history not motivated by partisanship or politics, but strictly based on the nominee's contribution to law. However, Hoover was running for re-election, eventually against Franklin Roosevelt, so a larger political calculation may have been operating. Cardozo was confirmed by a unanimous voice vote in the Senate on February 24. On a radio broadcast on March 1, 1932, the day of Cardozo's confirmation, Clarence C. Dill, Democratic Senator for Washington, called Hoover's appointment of Cardozo "the finest act of his career as President". The entire faculty of the University of Chicago Law School had urged Hoover to nominate him, as did the deans of the law schools at Harvard, Yale, and Columbia. Justice Harlan Fiske Stone strongly urged Hoover to name Cardozo, even offering to resign to make room for him if Hoover had his heart set on someone else (Stone had in fact suggested to Calvin Coolidge that he should nominate Cardozo rather than himself back in 1925). Hoover, however, originally demurred: there were already two justices from New York, and a Jew on the court; in addition, Justice James McReynolds was a notorious anti-Semite. When the chairman of the Senate Foreign Relations Committee, William E. Borah of Idaho, added his strong support for Cardozo, however, Hoover finally bowed to the pressure. Cardozo was a member of the Three Musketeers along with Brandeis and Stone, which was considered to be the liberal faction of the Supreme Court. --This text refers to an alternate Paperback edition.

Product Details

• Paperback: 192 pages
• Publisher: Dover Publications (February 29, 2012)
• Language: English
• ISBN-10: 0486443868
• ISBN-13: 978-0486443867
• Product Dimensions: 8.4 x 5.4 x 0.5 inches
• Shipping Weight: 7 ounces (View shipping rates and policies)
• Average Customer Review: 3.8 out of 5 stars  See all reviews (11 customer reviews)
• Amazon Best Sellers Rank: #63,064 in Books (See Top 100 in Books)
  • #17 in Books > Law > One-L > Civil Procedure

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Customer Reviews

Most Helpful Customer Reviews

56 of 59 people found the following review helpful:

5.0 out of 5 stars A classic text that remains relevant to judicial politics, April 14, 1999

By A Customer

This review is from: The Nature of the Judicial Process (The Storrs Lectures Series) (Paperback)

This book reflects the profound intellect of one of the most highly regarded jurists in American history. Despite its age, Justice Cardozo's classic treatise provides insights into the "real" workings of the judicial decision making process that remain relevant to a modern analysis of American jurisprudence. His exploration of the motivations, ideals, and even prejudicies of judges serves to demystify this crucial aspect of the legal system. His insights into "legal realism" provide an appreciation of this judicial approach and offers an understanding of its underlying rationale, as well as an argument for its continued utility for modern jurists. Most importantly, he strives to make the judicial process comprehensible and, even, approachable to the non-practitioner of law, as well as law students, thus attempting to make public law, truly, "public."

12 of 12 people found the following review helpful:

5.0 out of 5 stars excellent explanation of the process of justice, July 21, 2002

By 

D. Friedman (New York, NY United States) - See all my reviews
(REAL NAME)   

This review is from: The Nature of the Judicial Process (The Storrs Lectures Series) (Paperback)

The judicial process is often a maddeningly confusing one. Cardozo, one of the most well known and respected jurists in the history of American law, aims to give a relatively straightforward account of the judicial process.

The book is a good introduction to law and its processes. It certainly is not an authoritative text, as certain of his discussions seem to be out of date. However, given the authority accorded Cardozo in the legal world one can hardly go wrong starting out with this book.

10 of 10 people found the following review helpful:

5.0 out of 5 stars Well constituted thinking, September 13, 2005

By 

FrKurt Messick "FrKurt Messick" (Bloomington, IN USA) - See all my reviews
(VINE VOICE)    (HALL OF FAME REVIEWER)    (TOP 500 REVIEWER)   

This review is from: The Nature of the Judicial Process (The Storrs Lectures Series) (Paperback)

Benjamin Nathan Cardozo has often been held up as one of the leading Supreme Court Justices in history, despite serving a mere six years on the high court (1932-38). Prior to this tenure, he served on the New York Court of Appeals, one of the principal courts of the nation, particularly during his time, from 1913-1932. Cardozo's opinions on interstate commerce, conflict of laws between federal and state, and congressional powr are still required reading not only for law school students, but also for those engaged in understanding the general manner in which Constitutional law is developed and regarded.

This book, first published in 1921, is a series of four lectures by then Judge Cardozo outlining his method of judicial process. The first lecture lays out a philosophical method. He explores the implications of Constitutional priority as well as the principle of stare decisis. 'Stare decisis is at least the everyday working rule of our law.' Cardozo is well aware of judicial power, be it in the Supreme Court or the lower courts. 'Every judgment has generative power,' he wrote, 'it begets in its own image.' However, precedent is not all powerful, and a good dose of reason and logic must be present in decision making.

In his second lecture, Cardozo looks at the issues of history (apart from precedent and particular case law), tradition and sociology in the judicial process. These all speak to the way in which society influences and shapes what kinds of judicial decisions and processes are needed. The third lecture develops this further, even going so far as to have the subtitle 'The Judge as Legislator.' This goes to the heart of one of the principles heavily in debate in the current Supreme Court and lower court selections. However, this kind of 'judicial activitism' is not the sole province of one political side or the other. Cardozo writes, 'sometimes the conservatism of judges has threatened for an interval to rob the legislation of its efficacy.' However, in speaking of the role of judge as legislator, Cardozo states, 'he legislates only between gaps. He fills the open spaces in the law. How far he may go without traveling beyond the walls of the interstices cannot be staked out for him upon a chart.' Cardozo argues that this is far from a new way of thinking, and that this is precisely how the great tradition of the common law developed.

Late in the third and throughout the fourth lecture, Cardozo looks at the issue of the subconscious or unconscious development of law and process for judges. This happens in legislation, too, Cardozo argues - when laws are examined in judicial settings, their dissection often reveals unintended and unknown aspects. The same must be true for the judicial process. Cardozo reasserts the principle of following precedent in a practical sense, and argues that that judicial process, being a human one, is bound by certain situations, but that the process as a whole is self-correcting. 'The eccentricities of judges balance one another.... Out of the attrition of diverse minds there is beaten something which has a constancy and uniformity and average value greater than its component elements.'

Cardozo's philosophy and thinking on the nature of the judicial process may not be to everyone's liking, but it has a strong place and influence in modern American judicial practice, and is presented in terms clear enough to make interesting reading even for those outside the legal profession.