Benjamin Cardozo and the Death of the Common Law

13 Pages Posted: 13 Jun 2018 Last revised: 8 Dec 2018

Date Written: May 29, 2018


Although a member of the Supreme Court at the time, Benjamin Cardozo did not participate in Erie Railroad Co. v. Tompkins. He was dying. It is a mere fortuity that Cardozo’s death coincided with the death of the general common law. Yet it has since proved to be something more—or so this symposium essay argues. It is in part because our highest court took itself out of the business of making law in contract, property, tort, and related areas that Cardozo’s beloved common law has fallen on hard times, and that even state-court judges have increasingly lost their feel for how to reason about it. Today, there is no member of a state judiciary who rivals Cardozo in stature. Mainly this is a testament to his extraordinary gifts. But it also reflects the waning of the common law in the United States, and a concomitant loss of the sense of what it means to be a great common-law judge.

Keywords: Andrews, Brandeis, Cardozo, Common Law, Equity, Erie, Gilmore, Holmes, Posner

Suggested Citation

Goldberg, John C. P., Benjamin Cardozo and the Death of the Common Law (May 29, 2018). 34 Touro L. Rev. 147 (2018), Harvard Public Law Working Paper No. 18-40, Available at SSRN: or

John C. P. Goldberg (Contact Author)

Harvard Law School ( email )

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617-496-2086 (Phone)

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