Cardozo and Uncertainty in the Common Law

24 Pages Posted: 19 Sep 2022

Date Written: September 15, 2022

Abstract

Cardozo has long been recognized and admired as a steadfast champion of the common law process through which judges develop legal rules incrementally, guided by reason, principle, and pragmatism. The Nature of the Judicial Process valorizes judicial decision-making and argues that any uncertainty underlying the substantive content of the common law can be overcome by the rationality of the judicial process. In it, Cardozo accepts the inevitability of uncertainty in the common law and recognizes the quest for substantive certainty to be illusory. Yet in a follow up to the book which he saw as a continuation of the argument—The Growth of the Law—Cardozo adopts the exact opposite position and argues that certainty in the substantive content of the law is both a desirable and necessary goal. And to realize this end, he makes the case for “restating the law” through a form of private codification undertaken by the American Law Institute (ALI), where he was a founding member. In an effort to reconcile the two contradictory positions, he then argues that such restating would inject additional creativity into the judicial process rather than stultify it, rendering it compatible with the mechanisms of decision-making that he championed.

This Essay unpacks Cardozo’s equivocation in the question of uncertainty in the common law as seen in these two seminal works. It argues that the contradiction is incapable of analytical reconciliation, a reality reflected in Cardozo’s own engagement with the Restatements during his time on the bench. It concludes by observing that Cardozo’s equivocation was in the end a result of his dual personas—one, as a judicial statesman committed to defending his role in the legal system, and the other as a reformist member of the legal profession—personas that tugged in opposite directions.

Keywords: Cardozo, common law, certainty, restatements

JEL Classification: K10, K41

Suggested Citation

Balganesh, Shyamkrishna, Cardozo and Uncertainty in the Common Law (September 15, 2022). Yale Journal of Law and the Humanities, Vol. 34, 2023, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4219852 or http://dx.doi.org/10.2139/ssrn.4219852

Shyamkrishna Balganesh (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

HOME PAGE: http://www.law.columbia.edu/faculty/shyamkrishna-balganesh

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