Monday, November 28, 2011

Holmes and Cardozo

Early Contributions to the Progression of the Law
By Christina French 

Christina French, a third year student at Albany Law School, is the Editor-in-Chief of Albany Law School's Journal of Science and Technology. She works at New York State United Teacher as a Law Clerk for the Office of General Counsel. This essay was written as one of the assigned memos for the Judicial Process seminar, Fall 2011 semester.

Two pieces, one written by Holmes[1] and another by Cardozo,[2] contribute to the study of the judicial process by articulating the theory of legal realism: the insights of realism to understanding what it is that judges actually do when they make decisions, and how that contributes to the progression of law. Holmes explains the way in which judges begin with a decision first, and only after that decision is made do they choose the reasons to explain them. Cardozo’s explanation of the judicial process begins with the law, but ends in the same place where Holmes begins--that is, with judges deciding difficult cases on the basis of considerations that reach well beyond the black letter of the law.

Ultimately, the two justices offer early forms of judicial realism that intended to avoid a formulaic and rigidly logical approach to decision-making. Holmes and Cardozo add to our more modern conversation of legal realism by offering theories that advocate for a judicial process where the law is necessarily (and properly) shaped by changing notions of justice and fairness.

One aspect that Holmes in particular adds to modern thinking about the judicial process is not only the reality of what judges do when they are making decisions, but the importance of those judges acknowledging the essential ingredients of decision-making, as well. Holmes wrote that “judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage.” For Holmes, this duty is not simply “inevitable.” He also seems to believe that the failure of judges to acknowledge what they are actuallydoing perpetuates what he deems to be a “revolting” result. That result is “to have no better reason for a rule of law than it has always been so.”

This perspective, when read in light of the work written by more recent Justices such as Scalia and Rehnquist, tends to undermine what many admire about Rehnquist and Scalia’s originalist belief—i.e., that the law should stay consistent and predictable by adhering to what has traditionally and “originally” been valued by society.[3] In the writings of both Holmes and Cardozo, predictability in the law is better derived from knowing that judges decide cases based on their own sense of justice and fairness.

For Holmes in particular, unrelenting marriage to tradition stymies what should be a progressive and malleable law. However, even Cardozo would not suggest that the “glacier” stop moving. Holmes’ theory really sums up what is a critical problem with the so-called “originalism” advanced by Scalia and Rehnquist when he states: “Far more fundamental questions still await a better answer than that we do as our fathers have done.”

Another way in which Holmes and Cardozo add to our study of the judicial process is their advocacy of a more practical approach to the law. For instance, Holmes insists that lawyers should take a more practical approach to the law and legal analysis on the basis that this is the approach taken by judges when they decide cases. By looking at the law through the lens of the accused, Holmes’ focus is on the consequences of the law, rather than its moral attributes.

Cardozo, too, argues that lawyers should acknowledge that the law is not always logical at all. According to Cardozo, when the cases get tough, it is often two logics that meet, and the one that prevails will be the one that leads to justice--as in the case of Riggs, the practical result being that a person who murders someone should not reap monetary or material benefits from the deceased.

Further, while Cardozo takes the reader through an analysis of the judicial process where judges first look to the law and the constitution, and then to precedents, Cardozo is candid about the fact that the nature of the law is such that judges cannot merely apply it. Instead, argues Cardozo, they must make it. And how that law is made will, more often than not, depend upon the individual judge and the way that judge has come to view the world.

The judicial process theories articulated by Holmes and Cardozo do not necessarily add to what we already understand about legal realism. However, these two pieces do add to our understanding of the judicial process. They offer a judicial perspective regarding the ways in which judges have been, and ought to be, necessary contributors to the progression of the law.

[1] Oliver Wendell Holmes, Jr., The Path of Law 10 Harv. L. Rev. 457 (1897).
[2] Benjamin N. Cardozo, The Nature of the Judicial Process, New Haven, CT: Yale University Press, 1921.
[3] Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989); William H. Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693 (1976).