Book Review

When Andrew Kaufman was tapped by Felix Frankfurter to write Cardozo's biography in 1957, he had probably heard the story of the good and bad judges. The bad judges were called formalists. They were dogmatic, abstract, and favored large corporations. The good judges were called realists. They were, . . . well, . . . realistic and changed the law the way it needed to be changed. The formalists survived in high places until 1937, then the realists had the kingdom to themselves. Elected to the New York Supreme Court in 1913, to the New York Court of Appeals in 1917, and appointed to United States Supreme Court in 1932, Cardozo was one of the good judges. Worshipful books appeared like Joseph P. Pollard's Mr. Justice Cardozo: A Liberal Mind in Action (New York: Yorktown Press, 1935). In the meantime, Kaufman and others, like Richard Posner in Cardozo: A Study in Reputation (Chicago: University of Chicago Press, 1990), realized that the story caricatured the past.	1
Earlier commentators ignored the precedents Cardozo cited or refused to take seriously the limits of his rulings. Kaufman chides Grant Gilmore for characterizing Cardozo "as if he had been Samson in the Langdell-Williston temple of contract" (250) when he was only a "modest innovator" (360). Cardozo announced in The Nature of the Judicial Process (1921) that most cases could be resolved by looking to precedent for a principle to apply or develop. By taking Cardozo's words seriously, Kaufman distinguishes himself from Richard Polenberg who reveled in the dramatic background of cases and spent too little time on legal reasoning to justify the conclusion that Cardozo often acted on personal bias (The World of Benjamin Cardozo: Personal Values and the Judicial Process [Cambridge: Harvard University Press, 1997]).	2
Kaufman praises Cardozo as the best a common law system produces: "He demonstrated that a judge could creatively modernize law while maintaining a genuine respect for history and precedent that embodied the notion of the rule of law" (126–27). Kaufman shares Cardozo's vision that good judging in a democracy somehow embodies community standards. Cardozo asked Learned Hand in 1929: "Why can't you say that when I am doing my will, I am interpreting the common will, a process ever so much more respectable?" He continued more seriously: "I have always professed to be doing this, and now you tell me it was a sham, and may be it was, though somehow or other there are times when I do feel that I am expressing thoughts and convictions not found in the books and yet not totally my own" (215).	3
Judicial biography is justified for two reasons that are often in tension: the judge laid out a doctrinal path worth notice or there are links between the life and the law produced. Kaufman has both in mind.	4
He argues that Cardozo made major contributions to negligence law by making foreseeability of harm key to establishing duty. Although McPherson vs. Buick in 1916 (which found the automobile manufacturer liable to the ultimate consumer and not merely the dealer) makes for vindication by history in spades, Kaufman acknowledges that Cardozo and his New York court continued to use the older notion of proximate cause. History never lapses into a simple-minded tale of ever onward and upward here.	5
Kaufman's interest in the relation between life and law comes out on several levels. He suggests that academics appreciate the differences between themselves and their judicial subjects who do not have time to worry a particular decision semester after semester (416). Posner, a judge, made this point and called for more attention to judicial rhetoric rather than judicial logic. Kaufman implies that the academics could do a better job of imagining their subject's work. For example, some have made the famous Palsgraf case of 1928 (involving a train, an explosion, a weight machine, and an injury) into a watershed between a prerealist use of proximate cause--Cardozo falling on the wrong side--and realist practical policy. Kaufman sees no chronological divide and dismisses "the bizarre hypotheticals of law professors" who, he implies, do not appreciate the day-to-day pressures of judging when there is little time to work out elaborate theories (303). Point taken, although it is marred by the bizarre hypotheticals debated by Cardozo, Learned Hand, and others who were drafting the American Law Institute's Restatement of Torts earlier in the chapter. Maybe they were acting like law professors.	6
Although he lays out the logic of lines of decision and takes issue with scholars who have accused Cardozo of duplicity, Kaufman is equally interested in discovering Cardozo's values within decisions. For example, he searches for hints of Cardozo's view of the scandal that forced his father from the bench in decisions touching on notions of honor. In a decision where Cardozo appears obtuse about rape, Kaufman finds proof of his traditional attitude towards women's proper behavior. Here Cardozo is not so much expressing community standards, as his own. Although in his contracts decisions, he seems to have been following the customs of the business community for whom he had worked as an attorney.	7
I was convinced of Kaufman's depiction of Cardozo's character, although troubled that he does not think it odd that a Sephardic Jew, albeit a nonpracticing one, should be described repeatedly as saintly. (They did not mean the requisite two miracles or one martyrdom, but that he was soft-spoken, kindly, and self-deprecating.) I was not always so sure that experience explained Cardozo's reasoning in a particular case. Upon rereading, I realize that the book was more subtle than my notes (one reads: because Cardozo took trains, he knew that passengers hurried off them). Kaufman's dual purpose, to connect life and law and to show the varied patterns in the judicial record, requires a sheer number of cases that can overwhelm the reader. I suspect that some chapters only a torts professor could love. They may love worrying Kaufman's analysis and evidence just as they do Cardozo's, but it will seem more appropriate as he is one of theirs.	8
Linda Przybyszewski University of Cincinnati

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