Benjamin N. Cardozo

Benjamin N. Cardozo

Infobox Judge
name = Benjamin N. Cardozo

imagesize =
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office = Associate Justice of the United States Supreme Court
termstart = March 14 1932
termend = July 9 1938
nominator = Herbert Hoover
appointer =
predecessor = Oliver Wendell Holmes, Jr.
successor = Felix Frankfurter
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termstart2 =
termend2 =
nominator2 =
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birthdate = birth date|1870|5|24|mf=y
birthplace = New York City, New York
deathdate = death date and age|1938|7|9|1870|5|24|mf=y
deathplace = Port Chester, New York
spouse =
religion = Jewish

Benjamin Nathan Cardozo (May 24, 1870–July 9, 1938) was a well-known American lawyer and jurist, remembered for his significant influence on the development of American common law in the 20th century, in addition to his modesty, philosophy, and vivid prose style. Although Cardozo served on the Supreme Court of the United States from 1932 until his death, the majority of his landmark decisions were delivered during his 18-year tenure on the New York Court of Appeals.


Born in New York City to Albert and Rebecca Nathan Cardozo, Benjamin was a twin, born with his sister Emily. Cardozo's ancestors were Portuguese Jews who immigrated to the colonies in the 1740s and 1750s from Portugalcite web| title = Distinguished Americans & Canadians of Portuguese Descent| url=|accessdate = 2008-01-09] via the Netherlands and England. The surname Cardozo ("Cardoso") is of Portuguese origin. He was a cousin of the Poet Emma Lazarus.

Albert Cardozo was himself a judge on the Supreme Court of New York (the state's general trial court) until he was implicated in a judicial corruption scandal, sparked by the Erie Railway takeover wars, in 1868. The scandal led to the creation of the Association of the Bar of the City of New York and Albert's resignation from the bench. After leaving the court, he practiced law until his death in 1885.

Early years

Rebecca Cardozo died in 1879 when Benjamin was quite young. He was raised during much of his childhood by his sister Nell, who was 11 years older. At age 15, Cardozo entered Columbia University and then went on to Columbia Law School in 1889. Cardozo wanted to enter a profession that could materially aid himself and his siblings, but he also hoped to restore the family name, sullied by his father's actions as a judge. When Cardozo entered Columbia Law School, the program was only two years long; in the midst of his studies, however, the faculty voted to extend the program to three years. Cardozo declined to stay for an extra year, and thus left law school without a law degree. [cite journal
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last = Levy
first = Beryl Harold
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date =
year = 2007
month = November
title = Realist Jurisprudence and Prospective Overruling
journal = New York Review of Books
volume = LIV
issue = 17
pages = 10, n. 31
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] From 1891 to 1914, Benjamin Cardozo practiced law in New York City. In the November 1913 elections, Cardozo was narrowly elected to the New York Supreme Court. Cardozo took office on January 5, 1914.

New York Court of Appeals

Less than a month after winning the election to the Supreme Court, Cardozo was elevated to the New York Court of Appeals, the highest court in the state. He was the first man of Jewish descent to serve on the Court of Appeals and became Chief Judge on January 1, 1927.

His tenure was marked by a number of original rulings, in tort and contract law in particular. In 1921, Cardozo gave the Storrs Lectures at Yale University, which was later published as "The Nature of the Judicial Process", a book that remains valuable to judges today. Shortly thereafter, Cardozo became a member of the group that founded the American Law Institute, which crafted a Restatement of the Law of Torts, Contracts, and a host of other private law subjects.

United States Supreme Court

In 1932, President Herbert Hoover appointed Cardozo to the Supreme Court of the United States to succeed Justice Oliver Wendell Holmes. The "New York Times" said of Cardozo's appointment that "seldom, if ever, in the history of the Court has an appointment been so universally commended."cite news |first= |last= |authorlink= |coauthors= |title=Cardozo is named to Supreme Court |url= |work=New York Times |publisher= |date=1932-02-16 |accessdate= ] He was confirmed by a unanimous voice vote in the Senate on February 24 ("New York Times", February 25, 1932, p. 1). On a radio broadcast on March 1, 1932, the day of Cardozo's confirmation, Clarence C. Dill, Democratic Senator for Washington, called Hoover's appointment of Cardozo "the finest act of his career as President" ("New York Times", March 2, 1932, p. 13). The entire faculty of the University of Chicago Law School had urged Hoover to nominate him, as did the deans of the law schools at Harvard, Yale, and Columbia. Justice Harlan Fiske Stone strongly urged Hoover to name Cardozo, even offering to resign to make room for him if Hoover had his heart set on someone else (Stone had in fact suggested to Calvin Coolidge that he should nominate Cardozo rather than himself back in 1925 (Handler, 1995)). Hoover, however, originally demurred: there were already two justices from New York, and a Jew on the court; in addition, Justice James McReynolds was a notorious anti-Semite. When the chairman of the Senate Foreign Relations Committee, William E. Borah of Idaho, added his strong support for Cardozo, however, Hoover finally bowed to the pressure.

Cardozo was the second person of Jewish descent, after Louis Brandeis, to be appointed to the Supreme Court. Because of his Iberian roots and fluency in Spanish, a few commentators consider him to have been the first Hispanic Justice as well, although his family origins were in Portugal rather than Spain. In his years as an Associate Justice, he handed down opinions that stressed the necessity for the law to adapt to the realities and needs of modern life.

Cardozo was a member of the Three Musketeers along with Brandeis and Stone, which was considered to be the liberal faction of the Supreme Court.


In late 1937, Cardozo had a heart attack, and in early 1938, he suffered a stroke. He died on July 9, 1938, at the age of 68 and was buried in Beth-Olam Cemetery in Brooklyn. His death came at a time of much transition for the court, as many of the other justices died or retired during the late 1930s and early 1940s.

Personal life

Of the six children born to Albert and Rebecca Cardozo, only Emily married, and she and her husband did not have any children. As far as is known, Benjamin Cardozo led a celibate life. As an adult, Cardozo no longer practiced his faith, but remained proud of his Jewish heritage. The fact that Cardozo was unmarried and was personally tutored by the writer Horatio Alger (who had been accused of inappropriate sexual relations with young boys) has led some of Cardozo's biographers to insinuate that Cardozo was gay, but no real evidence exists to corroborate this possibility. Constitutional law scholar Jeffrey Rosen noted in a "New York Times" Book Review of Richard Polenberg's book on Cardozo:

"Polenberg describes Cardozo's lifelong devotion to his older sister Nell, with whom he lived in New York until her death in 1929. When asked why he had never married, Cardozo replied, quietly and sadly, "I never could give Nellie the second place in my life." Polenberg suggests that friends may have stressed Cardozo's devotion to his sister to discourage rumors "that he was sexually dysfunctional, or had an unusually low sexual drive or was homosexual." But he produces no evidence to support any of these possibilities, except to note that friends, in describing Cardozo, used words like "beautiful", "exquisite," "sensitive" or "delicate." [Jeffrey Rosen, [ NYT Nov. 2, 1997] ]

Andrew Kaufman, author of "Cardozo" a biography published in 2000, notes that "Although one cannot be absolutely certain, it seems highly likely that Cardozo lived a celibate life." Judge Learned Hand is quoted in the book as saying about Cardozo: "He [had] no trace of homosexuality anyway." [See Andrew Kaufman, "Cardozo" (Cambridge: Harvard University Press, 2000) at 89.]

Famous opinions

*"Meinhard v. Salmon", concerning fiduciary duty of business partners.
*"Wood v. Lucy, Lady Duff-Gordon" was both a minor "cause celebre" at the time and an influential development in the law of contract consideration.
*"Palsgraf v. Long Island Rail Road Co." in 1928 was important in the development of the concept of the proximate cause in tort law.
*"MacPherson v. Buick Motor Co." helped signal the end of the law's attachment with privity as a source of duty in products liability.
*"DeCicco v. Schweizer", where Cardozo approached the issue of third party beneficiary law in a contract for marriage case.
*"Jacob & Youngs v. Kent", in which Cardozo argued that expectation damages arising from a breach of contract are limited to the diminuation of the property's value if the undoing of the breach was an economic waste.
*"Hynes v. New York Central Railroad Company", 231 N.Y. 229, 131 N.E. 898 (N.Y. 1921), which held that the defendant railway owed a duty of care despite the victims being trespassers.
*"Berkey v. Third Avenue Railway", 244 N.Y. 84 (1926), in which Cardozo pierced the corporate veil saying that the parent subsidiary relationship is a legal metaphor: "The whole problem of the relation between parent and subsidiary corporations is one that is still enveloped in the mists of metaphor. Metaphors in law are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it. We say at times that the corporate entity will be ignored when the parent corporation operates a business through a subsidiary which is characterized as an 'alias' or a 'dummy.'... Dominion may be so complete, interference so obtrusive, that by the general rules of agency the parent will be a principal and the subsidiary an agent." (pp. 93–94)
*"Panama Refining Co. v. Ryan", in which he dissented from a narrow interpretation of the Commerce Clause.
*"Palko v. Connecticut", rationalizing the Court's previous holdings that incorporated specific portions of the Bill of Rights against the states via the Due Process Clause of the Fourteenth Amendment by declaring that the due process clause incorporated those rights which were "implicit in the concept of ordered liberty." Though Palko's specific result (namely the refusal to incorporate the double jeopardy clause upon the states) was overturned in 1969's "Benton v. Maryland", Cardozo's broader analysis of the Due Process Clause has never been displaced.
*"Welch v. Helvering", which concerns Internal Revenue Code Section 162 and the meaning of "ordinary" business deductions.
* "Murphy v. Steeplechase Amusement Park", where Cardozo denied a right to recover for a knee injury from riding "The Flopper" because plaintiff Murphy had legally "assumed the risk."
* "Wagner v. International Railway", which created the rescue doctrine, holding that if a tortfeasor creates a circumstance that places the tort victim in danger, the tortfeasor is liable not only for the harm caused to the victim, but also the harm caused to any person injured in an effort to rescue that victim. "Danger invites rescue. The cry of distress is the summons to relief [...] The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had."

In his own words

Cardozo's opinion of himself shows some of the same flair as his legal opinions:

In truth, I am nothing but a plodding mediocrity—please observe, a plodding mediocrity—for a mere mediocrity does not go very far, but a plodding one gets quite a distance. There is joy in that success, and a distinction can come from courage, fidelity and industry.

Buildings and organizations named after Cardozo

*Cardozo High School in Queens, New York
*Benjamin N. Cardozo School of Law at Yeshiva University in New York City
*Cardozo College, a dormitory building at the State University of New York at Stony Brook
*Benjamin N. Cardozo Lodge #163, Knights of Pythias [ [ Benjamin N. Cardozo Lodge ] at]



Further reading

*cite book |title=Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Clinton |last=Abraham |first=Henry J. |authorlink= |coauthors= |year=1999 |publisher=Rowman & Littlefield |location=Lanham |edition=Revised edition |isbn=0847696049 |pages=
* cite journal | last = Cunningham | first = Lawrence A. | authorlink = | coauthors = | year = 1995 | month = | title = Cardozo and Posner: A Study in Contracts | journal = William & Mary Law Review | volume = 36 | issue = | pages = 1379 | id = | url = | accessdate = | quote =
* cite journal | last = Handler | first = Milton | authorlink = | coauthors = | year = 1995 | month = | title = Stone's Appointment by Coolidge | journal = The Supreme Court Historical Society Quarterly | volume = 16 | issue = 3 | pages = 4 | id = | url = | accessdate = | quote =
*cite book |title=Cardozo |last=Kaufman |first=Andrew L. |authorlink= |coauthors= |year=1998 |publisher=Harvard University Press |location=Cambridge, MA |isbn=0674096452 |pages=
*cite book |title=Cardozo: A Study in Reputation |last=Posner |first=Richard A. |authorlink=Richard A. Posner |coauthors= |year=1990 |publisher=University of Chicago Press |location= |isbn=0226675556 |pages=

External links

*gutenberg author|id=Benjamin+N.+Cardozo|name=Benjamin N. Cardozo

NAME=Cardozo, Benjamin Nathan
DATE OF BIRTH=May 24, 1870
PLACE OF BIRTH=New York City New York, United States
DATE OF DEATH=July 9, 1938
PLACE OF DEATH=Port Chester, New York, United States

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