Cardozo and the Death of the Common Law

Last month marked the 80th anniversary of the death of Benjamin Cardozo, a Supreme Court justice whose name still resonates in courtrooms and law schools across the country. As Andrew Kaufman observed in his great biography of the late justice, Cardozo stands as “one of the most distinguished judges in the history of American law.”

Cardozo cases, such as Palsgraf v. Long Island Railroad and People v. Zackowitz, remain staples of major casebooks. His influence on constitutional law can still be felt today as well. Cardozo’s majority opinions in Steward Machine Co. v. Davis and Helvering v. Davis upheld the constitutionality of the Social Security Act, opening a new era of federal jurisprudence.

But a disconnect exists between Cardozo’s short tenure on the bench and his legacy’s extraordinary reach. Remarkably, he only spent six years on the U.S. Supreme Court, a fraction of the time of major justices such as John Marshall (34 years), Stephen Field (34 years), Oliver Wendell Holmes, Jr. (29 years), Hugo Black (34 years), William Brennan (34 years), and Antonin Scalia (30 years).

So why is Cardozo still so prominent in American law all these years later?

An Eminent State Court Judge

The answer is found in his 18 years of service as a New York state appellate court judge, a tenure that ensured Cardozo’s place in history. In the 1910s and 1920s the common law was at its apogee, and no court had a greater influence on its development than the New York Court of Appeals. A graceful writer, congenial colleague, and exceptionally clear and logical thinker, Cardozo authored memorable and incisive state judicial opinions that were read and respected by judges all over the country, not just in New York. 

In the early 1920s he became one of the first public intellectuals to scrutinize the judicial process in a systematic fashion. In a series of lectures at Yale Law School (later published under the title The Nature of the Judicial Process), Cardozo described the common law as “the land of mystery when constitution and statute are silent, and the judge must look to the common law for the rule that fits the case.” No one did a better job than Cardozo of articulating (and developing) the common law in sensible and persuasive fashion. A deeply pragmatic and non-ideological judge, he advised fellow judges to ascertain principles of law from the governing precedents and “then determine the path or direction along which the principle is to move and develop, if it is not to wither and die.”

As Professor Kaufman explains in his biography of the justice, Cardozo’s core philosophy was that a judge needs “to understand the reason why particular prior cases were decided as they were” and then must “decide whether the principles that governed earlier situations should still apply.” 

But Cardozo was not a judicial activist. Deference to legislative judgments was a hallmark of his judicial philosophy. As he explained in his Yale lectures, a judge:

“legislates only between gaps. He fills the open spaces in the law. . . [R]estrictions . . . are established by the traditions of the centuries, by the example of other judges, his predecessors, and his colleagues, by the collective judgment of the profession, and by the duty of adherence to the pervading spirit of the law.”

Cardozo’s lectures at Yale and his extremely influential New York judicial opinions made him a national figure long before Herbert Hoover finally appointed him to the U.S. Supreme Court in 1932. As the retired 7th Circuit Judge Richard Posner observed in his book, Cardozo: A Study in Reputation, Hoover’s appointment of Cardozo:

“was noteworthy mainly because Cardozo had already achieved such professional eminence; it was one of the few times in our history that the most qualified candidate to fill a vacancy on the Supreme Court was the one actually picked for the vacancy.”

No More Cardozos

But will we ever see a Cardozo again?

In a new Touro Law Review article, Benjamin Cardozo and the Death of the Common Law, Professor John C. P. Goldberg points out that “[t]oday, there is no member of a state judiciary who rivals Cardozo in stature.”

The reason is because the effort to ascertain a universally-applicable, general common law came to an end in the famous 1938 case of Erie Railroad Company v. Tompkins, decided just a few weeks before Cardozo’s death. In Erie, the U.S. Supreme Court held that federal courts sitting in diversity jurisdiction should apply the state common law as articulated by the state supreme court. In one of the most famous passages in the U.S. Supreme Court’s history, Justice Louis Brandeis declared:

“whether the law of the State shall be declared by its Legislature in a statute or by its highest court in a decision is not a matter of federal concern. There is no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State, whether they be local in their nature or ‘general,’ be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts.” 

Erie brought to an end the idea that, in applying the common law, judges across the country were engaged in a common endeavor. The logic of Erie was that the common law can and should develop differently in the 50 states. State judges thus had no need to look beyond their own borders for guidance in ascertaining the common law.

In the years following Erie, the national influence of even the most brilliant and perceptive state court judges shrunk dramatically. Indeed, as Professor Goldberg points out with a rhetorical question, “If asked to nominate a candidate for the best-crafted state high-court decision on a matter of common law issued since the turn of the millennium, which decision would you choose?”

The question answers itself. Even among state court judges, few could identify contemporary state common law rulings that have anywhere near the national influence that Cardozo’s opinions had in shaping judicial thinking beyond New York’s borders. In short, Erie killed off the Cardozo-era of the common law. 

Does Erie Still Make Sense? 

To be sure, then and now, Erie has always had many defenders. One of the most long-standing defenses is that the common law should reflect local conditions. After all, Erie’s defenders ask, why should the common law be the same in Oklahoma as it is in New York? 

But in the twenty-first century world of Google, Amazon, and Walmart, the localist argument seems increasingly quaint. We live in a global economy characterized by mass media, mass retail, and mass consumption. Last week, for example, Apple became the first trillion dollar company in history. The distinctively local business practices and consumer preferences that predominated in 1938—the year of the Erie decision—are long gone.

In today’s America, the underlying issues at play in contract, tort, consumer protection and environmental law transcend state lines. In light of modern conditions, do we really still need 50 different bodies of common law? 

The strongest defense of Erie ultimately comes from the plain language and structure of the Constitution. As Justice Brandeis argued in the majority opinion, “no clause in the Constitution purports to confer” on Congress the “power to declare substantive rules of common law applicable in a State.”

Yet, it is noteworthy that the Supreme Court did not reach that conclusion until 1938, almost 150 years after the adoption of the Rules of Decision Act of 1789. And no less an authority than Joseph Story reached the opposite conclusion in the 1842 case of Swift v. Tyson, ruling that the common law resides “not in the decisions of the local tribunals, but in the general principles and doctrines of commercial jurisprudence.”

In any case, Erie’s legacy has rendered the days of state court giants like Cardozo little more than a memory. As Professor Goldberg concludes, “the Erie doctrine should still be recognized for what it is: a tributary feeding a stream feeding a river that is steadily bearing us away from common law and common-law method.” 

Irving Younger on Erie

Ironically, Benjamin Cardozo played a key role in facilitating Erie’s arrival at the Supreme Court, as the great Irving Younger explained in his 1978 Texas Law Review article, What Happened in Erie? Professor Younger’s wonderful retelling of the Erie story is also available on YouTube here.

At the 57 minute mark he tells the story of how Justice Cardozo heard arguments for and against the Erie Railroad’s stay application from the comfort of his living room in Mamaroneck, New York. Here is a taste of Younger’s description:

“And on the date in question, at the hour in question, [Bernard] Nemeroff and Stubby Hunt [the attorneys for Harry Tompkins, the injured plaintiff] were there and there was [Theodore] Kiendl [the defense attorney for Erie] to make the application on behalf of the railroad. And Nemeroff says that to his dying day he will not forget it. The butler received them and ushered them into the living room. At the other end of the living room there was a flight of stairs running up to the second floor . . . And it was the kind of flight of stairs only Scarlett O’Hara really knows how to walk down. And at the appointed hour, as if by magic, there appeared at the top of the flight of stairs the vision of Justice Benjamin Nathan Cardozo. . . . As all of you know, he was a man of enormous subtlety and learning, having served for many years on New York’s highest court, the Court of Appeals, having served with extraordinary distinction. Disregard of state court decisions under the rubric of general law authorized by Swift v. Tyson was hardly to be expected of Cardozo. . . . After listening to the opposition to the application for a stay, Cardozo, on the spot, granted it. There was a stay in place at once and the case now moved to the United States Supreme Court.”

The speech is a classic. Only Irving Younger could turn a diversity jurisdiction case into a thrilling nail-biter.  

Cardozo did not participate in the Erie decision. In January 1938 a devastating stroke paralyzed his left side, effectively ending his Supreme Court service. Three weeks later the Court heard oral argument in Erie. The Court decided the case on April 25 and Cardozo died on July 9. He was only 68 years old, much younger than many current justices. If not for his stroke, Cardozo likely would have defended state court prerogatives by ruling with the majority in Erie, as both Professor Younger and Professor Goldberg surmise. But it is an open question whether Cardozo would have welcomed Erie’s legacy.  

You can find Professor Goldberg’s superb Touro Law Review article here. It is only 13 pages long and it is quite thoughtful and engaging. 

Comments

[anon]

A broad view of Erie's restrictive effect is perhaps warranted in some respects, but perhaps there are too many exceptions to make this thesis persuasive.

First, the Restatements. Although perhaps less influential now, certainly these have had major effects, along with Model Statutes and Rules developed by various authorities.

Second, the federal common law. While denying it exists, the federal courts have created it with respect to interpretation and application of federal statutes and rules.

Third, the delegation to the state courts can be seen as a major empowerment of the common law, not a restriction. The fact that our state supreme courts are so lousy is only a reflection of these times -- in nearly every field, stagnation and incompetence rules the day.

[Howard Wasserman]

I had similar thoughts to Anon, especially as to point # 3--if all Common Law is state law, that should have made state judges more influential, because federal courts must parse state courts in making Erie Guesses.

The expansion of federal law is not only a product of broad preemption, but of the creation of new and broader statutory rights that plaintiffs can use in federal court.

[Scott Pruitt Edndowed Chair in Environmental Justice]

It's where the rubber meets the road for thousands of PI and insurance lawyers enabling them to pay off law school debt and take their families on vacation. It's about fees, money, United States currency...It represents the day a schmo three bill retail theft lawyer like me refers a sick, sore, and disabled client with multiple fractures and surgeries to my PI buddy who says thank you with my big hunk of third money. MONEY.

[Anthony Gaughan]

Thanks for your comments, anon and Howard.

I agree entirely with you both that Erie enhanced the power of state court judges, but the key point is it only did so within the borders of the judges' respective states. For example, as a consequence of Erie, New York common law has evolved very differently than Iowa common law, which means that in 2018 what a New York judge says about the common law has very little significance for an Iowa judge facing a common law issue.

That was not the case in 1938 when many state and federal judges thought they were engaged in a common endeavor to interpret a single body of common law.

But as a consequence of Erie, the common law has developed in profoundly different ways in the 50 states, which is why choice of law questions hold such immense importance today. Thus, Erie did not end forum shopping. It just reoriented it from a state versus federal question to a state versus state question.

Erie also created a whole host of new problems, such as the Erie Guess issue (which you point out Howard) as well as the thorny and unresolved procedural issues associated with the Hanna v Plumer and Byrd v Blue Ridge line of cases.

The bottom line is Erie gave rise to so many unintended consequences that I think it would have given the justices on the Hughes Court pause if they could have seen where Erie would lead. But at the same rate I think the Constitution may have mandated no other result (as Brandeis wrote in his opinion).

Thanks again for your comments, anon and Howard!

[Scott Pruitt Edndowed Chair in Environmental Justice]

Many folks attend law school to earn a living, ie make money, generate fees, income...that sort of thing. Theory is nice, but it won't fill up your tank at the BP so you can get to court in the morning. By only thanking anon and Howard, to the exclusion of me, for their comments is precisely why, in many respects, we have Donald Trump as president. Not much difference between "deplorable" and this...

[Anthony Gaughan]

My apologies, Scott Pruitt Endowed Chair in Environmental Justice. I should have thanked you for your comments too, and hereby do so.

[anon]

Again, your statement " the effort to ascertain a universally-applicable, general common law came to an end in the famous 1938 case of Erie Railroad Company v. Tompkins," is belied by the ALI, the Restatements, Model Acts, etc.

Second, the Erie Guess issue to which you allude is mitigated by the certified question procedure.

Having studied forum shopping in various contexts, I also believe it is incorrect to suggest that conflict of state law is a major issue: though, of course, it is an issue, as is the federal/state divide, as you noted.

Finally, the key to understanding your misperceptions, IMHO, is this "That was not the case in 1938 when many state and federal judges thought they were engaged in a common endeavor to interpret a single body of common law."

It was true that in an age where pleading was evolving, civil procedure evolving and tort and contract law were evolving (much more than before or since, I think), there was a thought that simply referring to Blackstone was necessary, but insufficient. Cardozo was paving the way into new understandings of product liability, for example. the word "interpreting" should be perhaps "developing."

Today, the states vary somewhat in the imposition of liability for product defects. However, the notion that there is no effort to synthesize and harmonize is fallacious, again, in my view.

[Scott Pruitt Edndowed Chair in Environmental Justice]

I feel better now. I was going to call one of those billboards, 1800-411-PAIN or maybe the guy with cowboy hat... You redeemed yourself. I feel like a stable genius now.