Benjamin Nathan Cardozo—called the “hermit philosopher” due
to his lofty principles and permanent bachelorhood—was one of the great jurists
and legal stylists of the twentieth century. He served on New York’s highest
tribunal and the US Supreme Court.
His opinions in both venues have sometimes been criticized
for excessively flowery language, but “his use of metaphor and aphorism make for
compression and vividness [and result in] works of judicial art,” according the
US Court of Appeals judge Richard Posner, himself a writer extraordinaire. A
sampling of Cardozo’s opinions reveals why he is so highly regarded.
Although not always right (by today’s standards, at least),
Cardozo was seldom in doubt. And he often stated his conclusions in a way that
effectively foreclosed further debate. For example, in People v. Defore he held that evidence could be admitted at trial
even if it was illegally seized by the police. He felt it wrong that “the criminal is to go free because the constable has
blundered.”
A turn of phrase like this brings one up short. And right or
wrong, these eleven memorable words—which remain burned into the memories of
many judges, prosecutors and law students—underlay the law of New York for more
than three decades until the US Supreme Court adopted the “exclusionary rule”
in 1961.
Continuing our sample of Cardozo’s opinions we see that he
was fond of reversing subject and predicate. Others have done this to fine
effect, like Robert Frost (“something there is that does not love a wall”),
Shakespeare (“something wicked this way comes”), and even Yoda (“named must
your fear be before banish it you can”).
These constructions sound strange to our twenty-first
century ears, but the technique gives one’s prose a poetic feel, and most
effectively did Cardozo use it.
[By the way, Cardozo was also
fond of “postpositives,” the technique of placing the adjective behind the noun
it modifies, as in “writer extraordinaire” and “An Honor Most Sensitive,” the
title of my previous blog entry.]
Palsgraf v. Long
Island Railroad Co. contains an example of Cardozo’s fetish for
subject/verb inversion. While trying to help a late-arriving passenger to board
a moving train, a railroad employee dislodged an unremarkable package the man
was carrying. The package contained fireworks. (Why the man was carrying
fireworks is not clear, and it doesn’t really matter, but today he couldn’t get
through security.) The package fell onto the rails and exploded when the train’s
wheels ran over it.
According to the opinion, “The shock of the explosion threw
down some scales at the other end of the platform, many feet away. The scales
struck the plaintiff, causing injuries for which he sues.”
To this day I don’t understand how “fireworks” could knock
scales over, but how it happened is beside the point. The fact is that the
plaintiff was injured and it was the courts’ job to sort through the legal
jumble. After Mrs. Palsgraf won at the trial and appellate court levels, the railroad appealed to New York’s highest court. The issue there was: what duty did
the railroad, through its employees, owe to Mrs. Palsgraf?
In Cardozo’s view, her injury was not a foreseeable result
of someone being helped onto the train, even if the help was provided negligently. He
used an example (and a subject/predicate reversal) to make his point:
We are told that one who
drives at a reckless speed through a crowded city street is guilty of a
negligent act and, therefore, of a wrongful one irrespective of the
consequences. Negligent the act is, and wrongful in the sense that it is
unsocial, but … only because the eye of vigilance perceives the risk of damage.
If the same act were to be committed on a speedway or a race course, it would
lose its wrongful quality.
In other words, there was no apparent hazard to Mrs.
Palsgraf; she was “many feet away” and not in any danger zone due to the
railroad employee’s actions.
Millions of words have been penned in analyzing this case.
And countless frustrated first-year law students have bumbled through cross
examination by torts professors while presenting it in class. Further analysis
I will not attempt, but the opinion is classic Cardozo: vibrant, poetic, and
anything but banal.
My train of thought, with or without exploding fireworks, will
travel next to another classic Cardozo opinion: one in which the wheels of
justice are made of wood. Stay tuned for the next blog posting.
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