The Nature of Cardozo’s Process: Testing it in Schloendorff and MacPherson

By Mary Ann Krisa

Mary Ann Krisa, currently in her final semester at Albany Law School, received her bachelor's degree in English Language and Literature from Smith College, and her Master's degree in Public Administration from Cornell University.  Additionally, Mary Ann has studied at Trinity College, Oxford, and Columbia University.  Prior to attending law school, she worked in the field of Higher Education for ten years. 


Within the world of legal scholarship, Benjamin Cardozo is lauded as a jurisprudential icon.  Having written approximately 500 opinions during his eighteen-year tenure at the New York Court of Appeals, and over 170 opinions during his six years on the Supreme Court, Cardozo redefined legal precedents, created new legal precedents, and wove his thinking into countless areas of law.  Outside of the courtroom, Cardozo wrote—and lectured—ostensibly about the purpose and function of law and the role of the judge in the legal system.

For Cardozo, “the Law” was not simply based on logic, but rather on a series of other considerations that addressed larger societal concerns.  This paper explores the application of Cardozo’s judicial philosophy as written in Cardozo’s book  The Nature of the Judicial Process, in two landmark New York Court of Appeals cases, Schloendorff v. Society of New York Hospital and MacPherson v. Buick Motor Co.

II.  THE NATURE OF CARDOZO’S JUDICIAL PROCESS
To understand how Cardozo purported to think about jurisprudence, one need not look any further than the opening lines of Cardozo’s seminal work The Nature of the Judicial Process.

What is it that I do when I decide a case?  To what sources of information do I appeal for guidance?  What sources of information do I appeal for guidance?  In what proportions to I permit them to contribute to the result?  In what proportions ought they to contribute?  If a precedent is applicable, when do I refuse to follow it?  If no precedent is applicable, how do I reach the rule that will make a precedent for the future?  If I am seeking logical consistency, the symmetry of the legal structure, how far shall I seek it?  At what point shall the quest be halted by some discrepant custom, by some consideration of the social welfare, by my own or common standards of justice and morals?   

Cardozo concludes, “[i]nto that strange compound which is brewed daily in the caldron of the courts, all these ingredients enter in varying proportions.”  Cardozo then goes one step further, acknowledging that such individual choices are not universal, but rather that the choices derive from beliefs nestled in both the conscious and the subconscious, beliefs that both “hover near the surface” and live “far beneath the surface.”

It is those deeply held beliefs, Cardozo argues, that keeps judges “consistent with themselves and inconsistent with one another.”   But when—and how—do those deeply (or not so deeply) held beliefs influence the judicial process?  Calling upon legal scholar John Chipman Gray, Cardozo suggests that those beliefs may invade when there is no answer, or when there is ambiguity, or “when the legislature has had no meaning at all; [or] when the question which is raised on the statute never occurred to it.”  To say it another way, these beliefs arise in times of uncertainty.

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To read the paper, open HERE.