Vol. 1, No. 3 (May, 1991) pp. 50-52
CARDOZO: A STUDY IN REPUTATION by Richard A. Posner. Chicago:
University of Chicago Press, 1990. 156 pp.
Reviewed by Jerry Goldman, Department of Political Science,
Northwestern University.
No one disputes Richard Posner's reputation. He is the prolific,
paternal protagonist of the law-and-economics school. As an
academic, he defined and elaborated economic analysis of law and
legal institutions. As a judge on the United States Court of
Appeals for the Seventh Circuit, he is a productive powerhouse,
deftly weaving his economic threads into the loom of the law.
Some antagonists who tired of (or objected to) the Posnerian
approach in academia thought navely that an appoint- ment to the
bench would confine and perhaps exhaust Posner's considerable
curiosity and inexhaustible energy. If anything, judicial
experience has made him more productive. Besides writing more
opinions by far than any of his colleagues, Posner manages to
contribute to the scholarly enterprise in ever more inventive
ways. Jurisprudence, law and literature, reputation, and soon,
sexuality, are his most recent off-the-bench, book- length
outputs in just the last three years. Praised for inven- tion,
Posner manages with apparent effortlessness to focus his powerful
gaze on fascinating questions.
In this monograph-length study, based on the Cooley Lectures at
the University of Michigan in 1989, Posner explores the
reputation of Nathan Benjamin Cardozo, who served as a judge (and
later chief judge) on New York's highest court, the Court of
Appeals, from 1914 to 1932. President Herbert Hoover nominated
Cardozo to be the 75th justice of the Supreme Court of the United
States; he served from 1932 to 1938.
There is a division of opinion concerning Cardozo's place in the
pantheon of great jurists, and Posner analyzes and reflects on
Cardozo's life and writings to evaluate his contributions.
Cardozo's critics have come to question his liberalism (is it
authentic?), his judicial philosophy (is it more than bromides?),
and his writing style (is it "obese and archaic"?).
These are legitimate issues to explore, argues Posner, given the
dearth of critical assessments of Cardozo and of judges
generally.
The first three chapters are devoted to Cardozo's life,
philosophy, and judicial technique. Here Posner displays his
ample gift for exposition and criticism. He penetrates Cardozo'
style, offering explanations for Cardozo' distinctive prose. A
common example is Cardozo's inversion of subjects and predicates.
("Negligent the act is, and wrongful in the sense that is is
unsocial, but wrongful and unsocial in relation to other travel-
ers, only because the eye of vigilence perceives the risk of
danger." [This from Cardozo's much celebrated and criticized
opinion in Palsgraf v. Long Island R. Co. quoted in Posner p.44.]
Cardozo also used metaphor and aphorism; and critics have labeled
his style "ornate." Posner takes issue with these
critics and defends Cardozo rightly for his brevity and
vividness. If Cardozo's style merits criticism, it is for
sometimes writing with "exotic grace." (44)
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The first third of Posner's study reveals much of Posner's skill
as literary critic and accessible expositor. Social scientists
will perk up in much of the remainder when Posner reveals his
analytic creativity. He begins by formulating a theory of
reputation, by which he means reputation in the broad sense of
being "widely regarded in a good light" or the equiva-
lent to fame.(58) Regrettably, Posner does not offer a succinct
statement of his theory, but implies such a theory from a set of
general points about reputation:
that it is facilitated by the "generality, variety, and
ambiguity of the reputee's work."
that luck bears on reputation. [In terms of posthumous fame,
Lincoln died at the right time and in the right man- ner.(62)]
that time is another factor, for in time good luck and bad luck
should wash out the random element in reputation as- sessment.
that politics plays a role in reputation. Judges closely
associated with ideologies (e.g., of liberalism or conserva-
tism) are likely to be in the running with high reputations
because they are exemplars of that ideology.
Any discussion and explanation of reputation calls for some tool
to measure it. Posner employs citation analysis as such a
yardstick. He examines the virtues and liabilities of citation
analysis in assessments of academic scholarship. Though they are
an imperfect proxy for reputation, Posner concludes that citation
counts are an acceptable index of quality, especially when
critics have posed no viable empirical substitute. Posner then
elaborates the special problems associated with legal citations
and lawyers as citers. With all its imperfections, citation
studies for Posner are a tool to measure judicial reputation.
Posner's citation research is illuminating. His approach is akin
to triangulation. While acknowledging the imperfections in
citation studies, he employs citations from a number of creative
directions and bases: citations to names of judges and to judges
and scholars; citations by courts to opinions by Cardozo and
other judges with whom he sat; comparisons of citations to
Cardozo's Supreme Court opinions with opinions of Brandeis and
Stone; and a comparison of citations to Cardozo and other judges
opinions in contracts and torts casebooks. For example, Posner
searched the principal law reviews electronically for articles
mentioning well-known judges. (Posner's name was not on the list,
but out of modesty not lack of influence.) Professional
reputation in the law, as measured by these citations, is strong-
ly correlated with a seat on the Supreme Court and with recency.
Justices Brennan and Rehnquist lead the pack of judges and
scholars in the period covered by Posner's data (1982-89). Posner
refines his citation tool by comparing citation counts to
Cardozo's 1914 opinions with counts to his colleagues 1914
opinions. (1914 was Cardozo's first year on the New York Court of
Appeals. Decisions were assigned by rotation; Cardozo had no
control over decisions
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assigned to him.) The evidence from multiple directions shows
that Cardozo exercised far more influence on the law than his
colleagues, as measured by citations to his opinions. Further
elaboration of the citation counts reveals Cardozo's influence to
citing courts in other states and to federal courts, far outdis-
tancing colleagues who, at the time, were regarded in Cardozo's
league. From so many directions, the evidence points to Cardozo's
high reputation.
Posner then synthesizes legal analytics and reputation analysis.
Cardozo's reputation was established as a common-law judge on the
New York Court of Appeals. His appointment to the Supreme Court,
where he served only six years, may well have been anticlimactic.
He did not leave a strong imprint on any field of Supreme Court
jurisprudence, which also coincides with Posner's citation
analysis.
What then does Posner make of Cardozo's reputation? He is
unquestionably the most famous common-law judge of the twentieth
century but far from the most influential judge. Cardozo's impact
derives from his exposition and synthesis, not his intel- lectual
creativity. "He made law clearer, more interesting, more
intelligible," observes Posner. Two primary factors
outdistance other explanations of Cardozo's eminence: the
rhetoric of his opinions and his judicial program (stated in THE
NATURE OF THE JUDICIAL PROCESS) "of bringing law closer to
the (informed) nonlawyers sense of justice." Cardozo's skill
was in sugar coating his pragmatism with respect for precedent.
In an Epilogue, Posner suggests several avenues for re- search.
There is much here for quantitative and nonquantitative
investigators. It should fuel other investigations simply because
the idea of reputation needs more work. For example, Posner urges
examination of the unsampled Cardozo opinions and the unsampled
opinions of Cardozo's colleagues on the Court of Appeals. Here
Posner seeks further testing of his hypotheses. But if such a
study only confirms Posner's findings, there is little evidence
that such an endeavor will aid the investigator's reputation
(though it may add marginally to Posner's). Such is the structure
of present-day social science, unlike present-day science, that
it gives little credit for the confirmation of another
investigator's hypotheses. However, an investigator might build
or establish a reputation in the event that he proved Posner
wrong.
Posner also offers up investigations of opinion assignment,
signed versus per curiam opinions, quantitative analysis of
judicial reputation, and studies of the literary dimension of
opinion writing. All of this is well worth considering. The
subjects and the techniques are familar to social scientists in
public law. The increasing availability of LEXIS places critical
judicial studies, like Posner's examination of Cardozo, within
our grasp. Posner has once again illuminated a worthy enterprise
with by his creative gaze. Time will tell whether he has become a
beacon leading others in his path.
Copyright 1991