Privity of Contract, Proximate Cause, and Due Process: Justice Benjamin Cardozo, born 1870 May 24th

The dogs wait for admission to Cardozo Law School

Benjamin Nathan Cardozo, (born May 24, 1870, New York City, New York, U.S.—died July 9, 1938, Port Chester, New York), associate justice of the United States Supreme Court from 1932 to 1938. Cardozo was a creative common-law judge and legal essayist who influenced a trend in American appellate judging toward greater involvement with public policy and a consequent modernization of legal principles. Generally a liberal, he was less concerned with ideology than with the nature of the judicial process.

Law students become familiar with Justice Cardozo through his iconic decisions such as : In Constitutional class Palko v. Connecticut, 302 U.S. 319 (1937) the due process clause incorporated those rights which were “implicit in the concept of ordered liberty; In Contracts sessions MacPherson v. Buick Motor Co., 111 N.E. 1050 (1916) ending privity as a prerequisite to duty in product liability by ruling that manufacturers of products; and the source of many law student nightmares, In Torts arguments Palsgraf v. Long Island Railroad Co., 162 N.E. 99 (1928) the development of the concept of the proximate cause in tort law.

As simultaneously a judge and legal theorist, Cardozo listened hard to what people were saying, attempted to find useful insights in all positions, sought to sift out rhetorical extremes and tried to minimize differences between contending theories and doctrines. In short, he was essentially a compromiser, in the best sense: a person who sought accommodation.

At a time when some regarded the idea that judges make law as dangerously radical, Cardozo eloquently defended the proposition that on some occasions, and within limits, it is appropriate and necessary for them to do so. (Critics of the idea that judges make law argue that their job is to follow legislators’ will and legal precedent as far as possible.) No one has done better in describing the basis of judicial law making in difficult cases than Cardozo did 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.”

In retrospect, the most important contribution to law of this conscientious, thinking Justice was his demonstration of the viability of the common law method of judging. Today, that contribution remains a bulwark against attacks on that tradition.

Those who believe that judges are different from legislators and that the common law method is an essential feature of our form of government should pause today to pay homage to Benjamin N. Cardozo’s memory.

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