This new biography of one of the eminences of American law is
interesting yet unsatisfying, for author Polenberg's
(History/Cornell Univ.) attempt to demonstrate how Cardozo the man
shaped Cardozo the judge lacks necessary depth. Respected for his
erudition, admired for his incisive opinions as a judge on New York
State's highest court and on the Supreme Court, and beloved for his
gentleness, Benjamin N. Cardozo (1870-1938) was much celebrated
during his own lifetime. The acclaim persists six decades after his
death, despite the fact that while several principal Cardozo
doctrines endure, many of his most important decisions have been
rejected as antiquated and inappropriate. For instance, in 1957 the
New York Court of Appeals overturned Cardozo's 1914 and 1925
decisions that hospitals can't be held liable for the errors of
surgeons and that universities can't be legally responsible for
mistakes made by science professors that result in laboratory
accidents. Polenberg appropriately and respectfully attempts to
deconstruct the Cardozo legend, arguing that he lacked sufficient
emotional experience to inform his judicial decisions. For example,
in reviewing a rape case, Cardozo's repressed and naive views on
sex prompted him to advance the now totally discredited legal
assertion that an "unchaste" woman would not likely resist sexual
advances. Indeed, Polenberg shows that Cardozo sometimes distorted
or ignored salient facts to make his judicial decisions conform to
his personal sense of morality. The weakness of the book, however,
is that Polenberg defends his positions by discussing a handful of
admittedly important decisions in excessive detail, at the expense
of a thorough analysis and critique of Cardozo's body of work. Not
every Cardozo ruling would bear out Polenberg's thesis. It is well
acknowledged in modern legal theory that judges are strongly
influenced by their emotions and experiences when molding law;
thus, the reader might expect more from Polenberg than simply the
PrOposition that Judge Cardozo's stunted emotions affected his
rulings. (Kirkus Reviews)
"The sordid controversies of litigants," Benjamin Cardozo once
said, are "the stuff from which great and shining truths will
ultimately be shaped." As one of America's most influential judges,
first on New York State's Court of Appeals and then on the United
States Supreme Court, Cardozo (1870-1938) oversaw this
transformation daily. How he arrived at his rulings, with their
far-reaching consequences, becomes clear in this book, the first to
explore the connections between Benjamin Cardozo's life and his
jurisprudence.
An intensely private man whose friends destroyed much of his
correspondence, Cardozo has long eluded scrutiny. But through
extraordinary effort Richard Polenberg has uncovered letters,
briefs, transcripts, and biographical details to give us a complex
living picture of this man whose judicial opinions continue to
affect us. Polenberg describes the shaping experiences of Cardozo's
youth, among them the death of his mother when he was nine years
old; religious training in the Spanish-Portuguese Synagogue; two
years of private tutoring by Horatio Alger, Jr.; and his reaction
to the scandal that prompted his father to resign from the New York
Supreme Court. Then, in light of certain cases that were brought
before the Court of Appeals, we see how Cardozo's rulings reflected
a system of beliefs rooted in these early experiences; how, despite
his famous detachment, Cardozo read evidence and precedents
selectively and based his decisions regarding issues from rape and
divorce to the insanity plea on his own views about morality,
scholarship, and sexuality. Here too is the truth behind Cardozo's
renowned liberalism, explored through his rulings on New Deal
measures such asthe Social Security Act and his more conservative
decisions in cases involving conscientious objectors and the rights
of criminal defendants.
The Benjamin Cardozo who emerges from these pages, a
complicated and intriguing figure, points to a new understanding of
the shaping of American law.
General
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