Customer Reviews

The Nature Of The Judicial Process (1921)

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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."

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 It certainly is not an authoritative text, as certain of his discussions seem to be out of date.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.

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.

The opinions of Benjamin Cardozo opinions on interstate commerce, conflict of laws between federal and state, and congressional power are still required reading many law school students. They are also extremely helpful to others interested in understanding the judicial process. "The Nature of the Judicial Process," first published in 1921, is a series of four lectures by Judge Cardozo outlining his method of judicial process. The first lecture explores the implications of Constitutional priority as well as the principle of stare decisis. 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. The third lecture develops this further, even going so far as to have the subtitle 'The Judge as Legislator.' 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. He also 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. An excellent book for anyone wishing to develop a fuller understanding of the judicial process.

One of the Best short books ever written about judicial philosophy.

The General Books version is some kind of scanned/OCR copy of the original. It is riddled with typos (no one seems to have checked what they scanned) and the layout is a disaster -- footnotes are interspersed with the principal text, for example. Unless you want to pull your hair out while reading this otherwise classic text, please find a different edition to buy!

Written in 1921, its no longer copyrighted. No need to buy it when you can download it free.

In fact, the printing I received seems to be a poorly formatted PDF printout of an older scanned copy (in a fancy binding). It seems to include some underlining and comments from the owner of the original book.

I felt a little cheated by the publisher - Bibliolife.

This book is great and really goes over some interesting analysis when it comes to judging. Cardozo is brilliant and there is no reason not to read this book. A lot of my casebooks cited it so I had to find out what this book was. It is very short, so it makes a great quick read.

Benjamin Cardozo's philosophy and thinking on the nature of the judicial process has a strong place and influence in modern American judicial practice. In this classic book, Cardozo presents his topic--the judicial process--in terms clear enough to make interesting reading even for those outside the legal profession.

"The Nature of Judicial Process" by Benjamin N. Cardozo is truly a classic, one of the best short books ever written about judicial philosophy.