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Benjamin N. Cardozo: The Tort Whisperer Nine Decades Later

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Illustration of Benjamin Cardozo

Illustration by Barbara Kelley

Benjamin Nathan Cardozo. Born 1870. Died 1938.[1] He was only human.

This article explores Cardozo’s most famous scripted tort decision, Palsgraf v. Long Island R. Co., 248 N.Y. 339 (1928),[2] 83 years since he breathed his last breath. The analysis herein, using the Palsgraf decision, seeks to compare and contrast Cardozo’s humanistic and intellectual dichotomies which are exemplified in that celebrated case. It is from this methodology of analysis whereby Cardozo, in my view, contrary to judicial lore, is shown to be an emotive human being in his judicial decisionmaking. This has not been the traditional perception of Cardozo.

As a beginning — Cardozo — who remembers him? Does a long forgotten sleepy afternoon during law school possibly conjure up a distant memory? Maybe those few still awake during a tortuous Socratic dialogue, especially in torts[3] or contracts,[4] recall a glimmer of his legal and historical life?

Nevertheless, Benjamin Cardozo left a foundational blueprint on nearly all chronicles of the law.[5] To commemorate him, there is the Cardozo School of Law of the Yeshiva University. The obvious Jewish reference to “Yeshiva,”[6] another contradiction in his life, was despite being born into a Sephardim Orthodox family, he did not believe in religion.[7] Another anomaly is Cardozo’s public support of numerous Jewish organizations during his life.[8] Yet, he never experienced overt anti-Semitism until he reached the U. S. Supreme Court.[9]

Cardozo’s intellectual pursuits extended to develop commentaries on why judges should not decide the blurred legalities of human conflicts only on formulistic ritual. Cardozo stated:

The [judge’s] range of free activity is relatively small. We may easily seem to exaggerate it through excess of emphasis. None the less, those are the fields where the judicial function gains its largest opportunity and power. Those are the fields, too, where the process is of the largest interest. Given freedom of choice, how shall the choice be guided? Complete freedom — unfettered and undirected — there never is. A thousand limitations — the product some of statute, some of precedent, some of vague tradition or of an immemorial technique, encompass and hedge us even when we think of ourselves as ranging freely and at large. The inscrutable force of professional opinion presses upon us like the atmosphere, though we are heedless of its weight.[10]

A Life Overview

Cardozo must be measured as a judge by the unrelenting movement of time that marks our constantly evolving concepts of renown, or mediocrity, and stretches well beyond the finality of one’s demise.[11] As highlighted below, Cardozo is revered in some circles, while others thought him overly stylistic and problematic in his opinions. For 19 of his living 67 years, he served as a judge in New York state.[12] Cardozo was 46 when, in 1913, he was elected to the New York Supreme Court.[13] Within one month, his extraordinary talent garnered him temporary appointment to New York’s highest tribunal, the Court of Appeals. Cardozo was then continually elected to that court until 1932. He served his last five years as chief judge.[14]

Cardozo’s cerebrum operated on a high scale of intelligence, graduating from Columbia University in 1889, having enrolled at 15 years old.[15] He attended Columbia Law School for less than two years,[16] then quit. He interned at a law firm and proceeded to pass the bar.[17] For 22 years he practiced as a hard-knuckled trial litigator, a contradiction in terms to descriptions of his passivity, “saintliness,” and angelic appearance as a judge.[18] He concluded those litigation days as a premiere appellate advocate.[19]

Cardozo, when litigating, was apparently not above personal attacks, manipulations, or whatever was necessary to achieve a “client’s goal.”[20] Thus, even a revered lawyer as Cardozo understood litigation was not conducted in pristine English social clubs resolving legal disputes over tea and crumpets. Would Cardozo be branded today as a “Rambo” litigator?

Aspects of Cardozo’s personal life were different from the perceived norm, at least for his historical time. For one, Cardozo never married.[21] It is not clear whether his emotional needs were ever consummated.[22] His mother died when he was nine.[23] Cardozo suffered through early deaths of siblings, except his older sister, Nell.[24] Cardozo lived with Nell until her death in 1929. Nell filled the role of his mother. Their emotional attachments were complicated and have never fully been understood.[25]

In destroying all “letters” to and from Nell, Cardozo blocked others from dissecting the multiple emotional layers of his life.[26] Certain professional and personal written exchanges have survived.[27] These do not generally enable an inquiry to the core that might have been exposed in less guarded letters to Nell.

Politics and judges are lasciviously interwoven, even into “neutral” merit selection processes. Albert Cardozo, Benjamin’s father, was elected to the trial court in New York City (Supreme Court) with the support of Boss Tweed, a Tammany Hall political operative.[28] Unfortunately, Albert Cardozo was not totally above acts of impropriety. He did succumb to the machinations of Tammany Hall.[29] Cardozo’s father was described as a very good trial judge, even brilliant.[30] However, on the shadowy side he doled out judicial favors to friends of Boss Tweed.[31] The senior Cardozo resigned amidst controversy, and in disgrace. Yet he was never prosecuted nor disbarred.[32] Afterwards he developed a sustainable law practice, but died when Benjamin was 15.[33]

His father’s public scandal seemed to have deeply scarred Cardozo. He devoted most of his life to expunging this dark familial blight left by his father’s disgrace.[34] Cardozo became singularly focused on an unrelenting task to undo this shame. Between his workaholic efforts as a trial lawyer, appellate attorney, and renowned career as a judge,[35] Cardozo defied the literary father of Oliver Wendell Holmes, Jr.’s sarcastic observation, “[I]f you eat sawdust without butter, young man, you will be a success in the law.”[36]

Cardozo’s judicial opinions were excruciating to compose. He labored over crafted phrases, words, and drafts.[37] Cardozo’s writing style is unique, with “inversions of standard word order and his use of metaphor and aphorism [making] for brevity and vividness.”[38] Critics castigated his style as being something akin to “alien grace.”[39]

Oliver Wendell Holmes, Jr., was Cardozo’s idol.[40] In 1932, Holmes, 91, was forced to retire from the U.S. Supreme Court.[41] With bipartisan support, a soon to be electorally defeated Herbert Hoover nominated Cardozo.[42] Holmes was pleased.[43]

Had Cardozo not overcome his father’s transgressions? Yet, the U.S. Supreme Court was a position Cardozo did not seek in 1932.[44] He was already in poor health,[45] and he personally and socially enjoyed that tenure even less.[46] His lifetime term on the Court lasted but six years. In 1938, after suffering a coronary attack, and later a stroke,[47] Cardozo’s heart progressively weakened over the months until it silently stopped beating.[48]

Scholarship About Judging

In 1921, Yale Law School asked Cardozo to give a series of lectures on judging.[49] Written compilations of these lectures were assembled into The Nature of the Judicial Process (Nature), probably his most famous book.[50] He also wrote essays and lectures published in The Growth of the Law,[51] The Paradoxes of Legal Science,[52] and Law and Literature.[53] There is debate whether Cardozo’s pronouncements have stood the test of time as seminal work on how judges judge?[54] The conflicting principles generated by Cardozo culling from arcane concepts a framework on how a judge really decides cases led some to call for his impeachment since he was a sitting judge.[55] Throughout his written works, Cardozo lays out the realities behind the imperfect science of judging — personal, subjective, pragmatic, or at times biased. Arguendo maximus:

We shall know that the process of judging is a phase of a never ending movement, and that something more is exacted of those who are to play their part in it than imitative reproduction, the lifeless repetition of a mechanical routine.

* * *

I come back in the end to the text with which I started: “Law must be stable, and yet it cannot stand still.”

* * *

I make no pretense of having given you the key that will solve the riddle, the larger and deeper principle that will harmonize two precepts which on their face may seem to conflict, and thus to result in an antinomy. I can only warn you that those who heed the one without honoring the other, will be worshiping false gods and leading their followers astray. The victory is not for the partisans of an inflexible logic nor yet for the levelers of all rule and all precedent, but the victory is for those who shall know how to fuse these two tendencies together in adaptation to an end as yet imperfectly discerned.[56]

Photo of Benjamin Cardozo

Photo of Benjamin Cardozo courtesy of the Library of Congress, Prints & Photographs Division, Photograph by Harris & Ewing [Lc-Dig-Hec-21519].

In Nature, a theorem stands out challenging the axiom of legal precedent as one jagged path on how judges make their decisions. In essence Cardozo describes it as what a judge wants to do, whether to stand on shifting intellectual quicksand, or on pre-existing concrete. A priori, generational questions of law will be decided inconsistently during variant times by different judges.

Some of Cardozo’s musings on judging give surprise pause, even today, and more contradictions. Cardozo gives his imprimatur to a judge’s fluidity of decisionmaking:

A case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.[57]

Then his affirmation of a judge misstating facts to get the decision he or she wants to attain.

I often say that one [a judge writing a judicial opinion] must permit oneself, and that quite advisedly and deliberately, a certain margin of misstatement.[58]

Cardozo, put this tactic to use in the case that follows.

Next Stop — Palsgraf

Cardozo’s contributions to the development of the black letter law of torts have been profound, though at times inconsistent.[59] For a deeper dive, noted scholars have already charted this trail in lengthier commentary,[60] some disparaging Cardozo’s judicial legacy.[61]

This article’s attempt at a constrained curricular analysis involving one famous Cardozo tort opinion could arguably have been shortened considerably by reverting back to a long departed law school professor’s old adage, “Change the facts, and you change the law.” Such an article, however, would surely not see dark print on white parchment if only echoing this singular law school commandment.

• Palsgraf Introduction — In the Palsgraf days, written decisions of the Court of Appeals of New York were assigned by simple rotation.[62] Palsgraf fell randomly upon the desk of Chief Judge Cardozo in Albany, New York. Already there had been a jury trial in favor of Mrs. Palsgraf,[63] and a 2-1 appellate division affirming the verdict.[64] It was a railway case, and Cardozo himself rode trains, so he was familiar with that environment. However, by the roaring 1928 time frame of Palsgraf, in an ever-burgeoning modern society, what was then Cardozo’s belief as to evolving tort law? Was every civil wrong to be righted in this new Industrial Age of the 20th century?[65] Or did Cardozo, born into the upper crust of New York City society, possess inherent class biases disfavoring a Brooklyn “janitor” woman such as Mrs. Palsgraf?[66] With so many Cardozo tort decisions already rendered no simple response suffices. There is no straight line of Cardozian decisional tort absolutism due to relativity and proximity of negligence, like trying to negotiate San Francisco’s Lombard Street.[67]

Cardozo’s Methodology in Palsgraf — The way Cardozo lays out the case facts leads one to suspect how the dispute will be decided. Cardozo achieved his result by tinkering with the facts, to which he noted earlier judges should be able to do.[68] Despite an extensive jury trial record, Cardozo harvested only Spartan factual points:

Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward to catch it. One of the men reached the platform of the car without mishap, though the train was already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall. A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind. In this act, the package was dislodged, and fell upon the rails. It was a package of small size, about [15] inches long, and was covered by a newspaper. In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents. The fireworks when they fell exploded. 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 she sues.[69]

The locality of the weighing scales in the record was different from where Cardozo’s judicial penmanship placed them.[70] The scales’ loci stated by Cardozo as “many feet away” was not supported in the record if he meant a great distance. But this was the causa remota to his distal analysis in Palsgraf so he could ultimately establish a limited legal duty owed only to the immediately present passenger carrying the package.[71] This was a fictional construct by Cardozo to create a theoretical perimeter that constricted the scope of duty for tumbling tort dominoes.

Cardozo posited there first must be a duty established for negligence; and then determine causatively a “proximity” analysis between the explosion and the person upon whom the destruction wreaked havoc.[72] Although duty and causation were often historically determined parallel legal issues, causation now is clearly one of fact. In Palsgraf, Cardozo imposed no duty owed beyond a line arbitrarily drawn to be close to the explosion. Despite Cardozo’s explanation of this elemental distinction of scope of duty, it must be asked is it really duty, lack of causation, or an unstated confluence of the two by which Cardozo implodes Mrs. Palsgraf’s legal claim?

It is important to recognize Mrs. Palsgraf is but a metaphor for everyone else standing on the rail station platform, even though she is not the only one injured.[73] Just like explosive fragments from that newspaper-wrapped package have their dispersal zones, in Palsgraf, Cardozo constructed a physical restricted location to establish a tort duty as being within only an “orbit of danger,”[74] something he never attempted to quantify.

How is an “orbit of danger” applied to establish legal duty when it is not objectively defined? It is, in naked reality, a marker by Cardozo espousing nothing but his individual subjective resolution of a liability contention. Is an “orbit of danger” any less practically undeterminable than Justice Potter Stewart’s famous view of pornography, “I know it when I see it”?[75] By not placing some corral of marked stakes around “orbit,” Cardozo arguably makes the element of duty an essential question of fact from a threshold question of law, though he also says it could be both.[76]

Cardozo adroitly explains away these vagaries in Palsgraf wordsmithing a sophistry of locality analysis as to whether a duty has been established:

The conduct of the defendant’s guard, if a wrong in its relation to the holder of the package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it was not negligence at all.

* * *

Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all. Negligence is not a tort unless it results in the commission of a wrong, and the commission of a wrong imports the violation of a right, in this case, we are told, the right to be protected against interference with one’s bodily security. But bodily security is protected, not against all forms of interference or aggression, but only against some. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. [He] must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm as unintended.[77]

What is the consistent principle of duty that forms the foundation of Cardozo’s spatial relationship to the harmful act? If you follow what is written, duty is determined by some unmarked, but limited yardstick, and Palsgraf was “standing far away” (whatever that means). It is just Cardozo’s arbitrary, personally subjective, peroration of his newly created postulate.

For a duty, what is too far or what is close enough? Palsgraf was on the station platform at the explosive moment, not in Manhattan outside Macy’s department store. This explosion occurred at the East New York Long Island Rail Station where Palsgraf, a possessor of a valid ticket, was waiting for her train. Did Cardozo not want a duty to avoid opening floodgates of litigation? Cardozo accedes to a negligent act by railroad employees, but then concludes it occurred in a vacuum as it pertains to Palsgraf “standing far away,” simply because that is what he says. Cardozo’s decision, some have argued, overruled a prior 1884 case, Ehrgott v. Major, 96 N.Y. 264 (1884), yet he cited it consistent with Palsgraf.[78]

Palsgraf precipitated a dissent (a rarity in those days of collegial consensus)[79] from Judge William Andrews.[80] The New York Court of Appeals then enjoyed a national reputation as the pre-eminent state judicial body.[81] Andrews’ dissent sought to fashion a more practical formula, not denying it included “practical politics,” a tactic judges certainly use. Andrews developed a “zone of danger”[82] standard, later adopted by the Florida Supreme Court.[83] The difference between Cardozo and Andrews, however, though wordplay was one, is that Andrews presumes negligence and determines the cause and effect from the act. He believes Palsgraf was closer to the explosion, but wherever she was there at the station, she was owed a duty from negligence and was injured by it.

[W]e have to inquire only as to the relation between cause and effect. We deal in terms of proximate cause, not negligence.

* * *

The act upon which defendant’s liability rests is knocking an apparent harmless package onto the platform. That act was negligent.

* * *

There was no remoteness in time, little in space. And surely given such an explosion.. . the natural result would be to injure one on the platform at no greater distance from the scene than was the plaintiff.[84]

Andrews has become more followed than Cardozo’s opinion.[85]

Divergence Over the Palsgraf Opinion — Reading Cardozo’s factual narrative in Palsgraf one might perceive the rail station “explosion” was not a major event. Yet, The New York Times printed a front-page article claiming the explosive blast was heard blocks away.[86] Either Cardozo cherry picked the record, or chose not to believe certain factual evidence that did not fit into his predetermined decisional outcome. For example, Cardozo blurred the actual distances from the explosion vis-à-vis both Palsgraf and the adjacent penny scales. He “arbitrarily” chose words depicting “far away” and “many feet away” to find being beyond the “orbit” of the extension of duty. Maybe Palsgraf, waiting days before seeking medical care, later developing a stammer,[87] then claiming traumatic diabetes,[88] injuries never mentioned by Cardozo, convinced him it was a frivolous lawsuit?

No one knew exactly what was in the unmarked wrapped package to create the explosion. It was reportedly presumed at the time to be fireworks for an Italian festival.[89] The explosion itself was either minor, destroyed planks of wood a lengthy distance from the actual event,[90] or an explosion heard by New Yorkers blocks away from the rail station. Then what of Mrs. Palsgraf? Cardozo said she was “standing far away,” but that was not truly correct. What was the dimensional extent of his “orbit of danger?” This answer is buried with Cardozo.

The record on appeal did not provide Palsgraf’s precise location, but there were facts about the positioning of several platform objects.[91] Identifying Palsgraf’s positional location is helped by a newsstand where one of her daughters was standing, which assists in the placement of the penny weight scales and Mrs. Palsgraf standing directly alongside. Using that mark and bearing, Mrs. Palsgraf was estimated to be 25-30 feet away, “perhaps less,” in Andrews’ dissent,[92] or 25-40 feet away by later researchers.[93] Either 25-40 feet certainly does not seem to equate to “standing far away” in an objective sense, where Cardozo otherwise placed Palsgraf like a pawn on his judicial chessboard.

Other inconsistencies exist. There were at least two or more men running to catch the train and others carrying unmarked packages. Cardozo has only two men, and the other one makes the train without mishap. One of the other men not mentioned by Cardozo dropped his unmarked package while trying to flee the station. That package ended up with the police who found inside several bombs.[94]

And what happened to Palsgraf? One version, in Cardozo’s cryptic recitation, was the weighing scales fell on her. Other evidence states Mrs. Palsgraf was trampled by the stampede of panicked passengers knocking her to the ground.[95] How did such a solitary event create a landslide of so many unknown consequences? That is the nature of the law — ever a conundrum. Law here today, but altered tomorrow by a different judge from yesterday.

• Palsgraf Perspective — Cardozo’s opinion sparked a cascade of both scholarly analysis and criticism.[96] The Palsgraf decision was literary craftsmanship by Benjamin Cardozo when he was the pre-eminent artistic jurist of the time. From a public relations standpoint, a majority would reflexively think Cardozo had gone forth into the judicial desert to return with what was an oasis of a legal gem.

To Cardozo and the orbital equation of duty he crafted, Mrs. Palsgraf was not injured by any commission or omission of conduct by the Long Island Rail Line since she was “standing far away.” Ruling otherwise, to Cardozo, may have been establishing a principle of absolute liability applying to the exigencies of modern day industrial life, although that precept already existed at common law but under different circumstances.[97] Since the railway employees chose to help one passenger, this is where the duty lay. In Cardozo’s base theorem of no existent duty, the oftentimes Palsgraf is read the more convinced it seems he was fixated upon the unknown contents of the package being surreptitiously carried. The purported distant location of Palsgraf at the time of the explosion was a raison d’être for Cardozo’s legal conscript, because where was the danger from the package to create a duty? No one outside the package holder actually knew.

Was Palsgraf a skewed Cardozo decision since judges are fallible human beings with natural flaws as described in the Nature lectures, capable of an intentional subjective result? Was the sine qua non of Cardozo’s description of physical proximity, or “orbit of danger,” fabricated to hide the arguably direct reason for the decision fashioned by him — his simple human emotional response to a perceived unconvincing set of facts?

If Cardozo, in his subjective decisionmaking, wanted to telegraph a different intended result in a factually contested tort case, he could have done so, and he knew how to do it. To illustrate the difference between how antiseptically Cardozo could lay a factual basis for an adverse holding from that of a favorable result, we can contrast Palsgraf with that of Hynes v. N.Y.C.R.R. Co., 231 N.Y. 229 (1921).

Judgment was entered for defendant railroad in Hynes on the claim plaintiff was trespassing when fatally struck down by electrical train lines. Cardozo blithely dismissed Hynes as a trespasser, finding instead he was utilizing a public waterway at the time of his injury, and the railroad easement holder was actually trespassing on public domain.

What is striking about Hynes is how Cardozo personifies the plaintiff and his injuries, and his emphasis on numerical measurements.

On July 8, 1916, Harvey Hynes, a lad of [16], swam with two companions from the Manhattan to the Bronx side of the Harlem river or United States Ship canal, a navigable stream. Along the Bronx side of the river was the right of way of the defendant, the New York Central railroad, which operated its trains at that point by high tension wires, strung on poles and crossarms. Projecting from the defendant’s bulkhead above the waters of the river was a plank or springboard from which boys of the neighborhood used to dive. One end of the board had been placed under a rock on defendant’s land, and nails had been driven at its point of contact with the bulkhead. Measured from this point of contact the length behind was five feet; the length in front eleven.

* * *

From this it follows that for seven and a half feet the springboard was beyond the line of the defendant’s property, and above the public waterway.

Hynes followed to the front of the springboard, and stood poised for his dive. At that moment a crossarm with electric wires fell from the defendant’s pole. The wires struck the diver, flung him from the shattered board, and plunged him to his death below. His mother, suing as administratrix, brings this action for her damages. Thus far the courts have held that Hynes at the end of the springboard above the public waters was a trespasser on the defendant’s land. They have thought it immaterial that the board itself was a trespass, an encroachment on the public ways.[98]

One should not cavalierly fail to see Hynes portrayed as a mere “lad,” while Mrs. Palsgraf was not even mentioned by name. Contrast Palsgraf, with no injury details, to Hynes as the young “lad” electrocuted and drowned to death.

Cardozo’s Palsgraf words establish a stratagem for analyzing if liability can be imposed from an unknown, ad infinitum set of factual events, multitudinal as the unlimited numerical shades that human conduct entail. One hundred years hence, some critics contend Palsgraf has now not traversed the journey of time well.[99] Although initially endorsed by The Restatements,[100] it was not by The Restatement (Third) of Torts in 2006.[101]

Nearly 100 years of cobwebs have wrapped themselves around Palsgraf. One might think it unseemly that nine decades after his demise Cardozo would really care to have a second chance at this decision. The fragility and uniqueness of Cardozo, despite his public disbelief in the God of an orthodox Sephardim Jew, was to accept only the life he was given. The legal landscape Cardozo wherein became nurtured has long since been lost to all except, for example, a tweed sport-coated law professor. Cardozo’s finely tuned legal terminology of a “duty” has essentially vanished. In negligence litigation today “duty” has become an automatic pre-ordained, self-proven element. After all, what daily practitioner argues “duty of scope” anymore?


Cardozo today still stands in the stratum of judicial primacy.[102] His well-known Palsgraf opinion is equally elevated as it is derided. The field of torts, as perhaps successfully or not argued, demonstrates that when it comes down to it, a judge, even Cardozo, can make a decision come out as he or she may be prejudicially, or otherwise pre-disposed to do. A black robe alone does not deify a judge’s decision.

What Cardozo did, aside from his common law contributions and advancement of juridical historiography, was to have an aptitude for legal reasoning using a style of literary expression that entitles him to exceptional judicial status. Cardozo, through his intellectual pursuits, sculpted an exemplary judicial life to eradicate the internal shame felt by his father’s public betrayal of a sacred judicial trust. He left that achievement in beautifully preserved written legal mosaics scribed with a formulaic and literary excellence which has not since been equaled.

It is submitted, despite his erudition, perceived aloofness, and brilliance of mind, the man also had a morose personal life, fraught with fragile health. Benjamin Nathan Cardozo walked a lonely path that only further magnifies his mystique. Yet, Cardozo portrayed himself in public quite differently with many personality layers shielding his basic inert existence as a lonely, mostly unfulfilled being. Many self-penned letters written in the dim glow of solitude have not survived to provide a window view into his true heart and emotions. Remaining verbiage, contemporaneously written to a cousin during his adult life, supports the perception of this lonely intellect’s soul who left an indelible mark on our law:

Your letter charms but does not comfort me. I sit upon my little handful of thorns and look with sad eyes upon the glories of creation. Dante reserved a special place for those who sulked under the sunshine, and doubtless the hot corner is held for my use.

* * *

I suppose the difference is just what you point out, that you don’t know the meaning of the word loneliness. To me it is a very vivid thing. The sense of being an atom in all this vast universe without any other atom traveling the same daily orbit is annihilating.. . . It doesn’t help me much to know that atoms more or less — akin are traveling orbits not very distant with feelings of atomic friendship.[103]

Cardozo’s reference here to “orbit” can be analogized to its use in Palsgraf. Like being beyond the “orbit” of duty, Cardozo portrays himself in private correspondence as a self-realized, solitary, lonely soul living beyond the “orbit” of mankind.[104]

[1] George Hellman, Benjamin N. Cardozo: American Judge 3 (1940); Richard Posner, Cardozo, A Study in Reputation 5 (1990).

[2] Id. at 41-42 (“case [Palsgraf] reprinted in all American casebooks on tort law”).

[3] See, e.g., MacPherson v. The Buick Co., 217 N.Y. 382, 384-385 (1916) (did not have to have privity of contract to sue manufacturer for a defective wheel made of wood); Altz v. Leiberson, 233 N.Y. 16 (1922) (landlord’s liability); Cullings v. Goetz, 256 N.Y. 287, 289 (1931) (negligence against tenant in car garage for damage to car). See also Warren A. Seavey, Mr. Justice Cardozo and the Law of Torts, 52 Harv. L. Rev. 372 (1939). Cardozo was also influential in criminal law precedents. See Richard Polenberg, Cardozo and the Criminal Law: Palko v. Connecticut Reconsidered, 2 J. Sup. Court History 92 (1996).

[4] See, e.g., Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 90 (1917) (most famous contract case; finding there was consideration for the contract, and an inferred requirement to use reasonable efforts under the contract). Duff-Gordon at one point was used in 12 of the 13 leading contract case books. Lawrence A. Cunningham, Cardozo and Posner: A Study in Contracts, 36 Wm. & Mary L. Rev. 1379, 1459 (1995). See also Arthur L. Corbin, Mr. Justice Cardozo and the Law of Contracts, 52 Harv. L. Rev. 408 (1939).

[5] Holmes wrote to Cardozo that “you [Cardozo] are the greatest judge that ever lived of course it may be that in the Stone Age or beyond there was a judicial genius or achievement beyond our ken today.” Oliver W. Holmes, et al., Holmes & Frankfurter, Their Correspondence 1912-1934, 235 (1996).

[6] “Yeshiva” is a Hebrew word meaning “a school for Talmudic study”; a “Jewish day school providing secular and religious instruction.” Webster’s Ninth New Collegiate Dictionary 1367 (1984).

[7] Posner, Cardozo, A Study in Reputation at 7-8. Cardozo [Sephardim Jew] never attended religious services as an adult. The Mediterranean Sephardim Jews were very insular, thinking themselves superior to the poorer, ragged Eastern European Jews. Andrew Kaufman, Cardozo 6-9 (1998). See Herman Wouk, The Will to Live On 59-60, 302 (2000); Stanley Fieldstein, The Land I Show You: Three Centuries of Jewish Life in America 5-6, 35-36, 133-137 (1978). Paradoxically, he did have a traditional Sephardim Orthodox funeral with no English or eulogy, and is buried in the Shearith Israel cemetery in Long Island. Kaufman, Cardozo at 577-578. The poet who wrote the immortal words on the Statue of Liberty, Emma Lazarus, was Cardozo’s first cousin. Id. at 8.

[8] Hellman, Benjamin N. Cardozo at 166-167. See Andrew L. Kaufman, Benjamin N. Cardozo, Sephardic Jew, The Jewish Justices of the Supreme Court: Brandeis to Fortas 35-39 (The Supreme Court Historical Society 1994).

[9] Cardozo experienced in his sheltered life growing up with little or no anti-Semitism. Posner, Cardozo, A Study in Reputation at 2. His first blatant exposure to personal anti-Semitism occurred while on the U.S. Supreme Court from Justice James McReynolds who hated Jews, including Louis Brandeis and Cardozo. McReynolds would intentionally effectuate personal and stated effronteries to Cardozo, such as “son of a crook.” Kaufman, Cardozo at 479-480. See Lewis Paper, Brandeis: An Intimate Biography of One of America’s Truly Great Supreme Court Justices 251 (1983); Alpheus T. Mason, Brandeis, A Free Man’s Life 466 (1946).

[10] Benjamin Cardozo, The Growth of Law 60-61 (1924) (emphasis added).

[11] “Cardozo is one of the great American [j]udges of the 20th [c]entury.” Gerald Gunther, Learned Hand: The Man and the Judge XV (1994). Frankfurter said Cardozo was “the greatest judge that ever lived[.]” Holmes, et al., Holmes & Frankfurter at 235; Posner, Cardozo, A Study in Reputation at vii (“Although the legal establishment canonized Cardozo during his lifetime….”). See Kaufman, Cardozo at 568-569. In l939, Yale, Harvard, and Columbia law reviews, in an unprecedented action, published a joint issue dedicated to Cardozo’s work. Id. at 702, n. 8.

[12] Posner, Cardozo, A Study in Reputation at 2-4.

[13] Id. at 2-3.

[14] Id. at 3.

[15] Hellman, Benjamin N. Cardozo at 24.

[16] Id. at 37.

[17] Kaufman, Cardozo at 54; Hellman, Benjamin N. Cardozo at 42. Cardozo was not referred to as a “saint” as a litigator. Posner, Cardozo, A Study in Reputation at 9; Kaufman, Cardozo at 112.

[18] Id. at 482. Poetic. Mystical quality. Hellman, Benjamin N. Cardozo at 138. Holmes referred to Cardozo as having a “beautiful face.” 2 Oliver W. Holmes, Jr., Holmes-Pollock Letters, The Correspondence of Mr. Justice Holmes and Sir Frederick Pollock 1874-1932 at 181 (1944). Cardozo was characterized alternately, and often referred to as angelic-like, and “saintly.” Posner, Cardozo, A Study in Reputation at 7-8. “A rarely beautiful character.” Holmes, et al., Holmes & Frankfurter at 111 (1996); Weisberg, Law, Literature and Cardozo’s Judicial Poetics, 1 Cardozo L. Rev. 283, 287 (1979) (“angelic presence”).

[19] Kaufman, Cardozo at 93, 100-103; Hellman, Benjamin N. Cardozo at 43-44.

[20] Id. at 112-113. See generally Kaufman, Cardozo at Chs. 5 and 6. He had a toughness of an ambitious lawyer. Id. at 3.

[21] Hellman, Benjamin N. Cardozo at 49; Kaufman, Cardozo at 85-86.

[22] It seemed Cardozo lived a celibate life. Id. at 68-69. Learned Hand put it more crudely paraphrasing, Cardozo was sex-less regardless of gender. Id.

[23] Posner, Cardozo, A Study in Reputation at 2.

[24] Except for his eldest sister Nell, his brother died at a relatively young age as did an invalid sister, Elizabeth, and Cardozo’s twin sister, Emily. Kaufman, Cardozo at 64-66.

[25] Id. at 67-69, 84-87, 141-148, 160-161; Posner, Cardozo, A Study in Reputation at 5, 7-8 (“an unusually close relationship, although there is no reason to think that the relationship was sexual”). Kaufman, Cardozo at 161, 183-185. See G. Edward White, The American Tradition: Profiles of Leading American Judges 497, n. 14 (ed. 1988).

[26] Learned Hand said Cardozo really never wanted anyone to “penetrate into his inner life.” Hellman, Benjamin N. Cardozo at 180.

[27] Kaufman, Cardozo at 151-157; Hellman, Benjamin N. Cardozo at 86, 150, 183-186 for examples. Cardozo and Learned Hand corresponded.

[28] Kaufman, Cardozo at 11-13, 16.

[29] Id. at 14, 20. “The career of Albert Cardozo permits us a glimpse of the seamier side of the relation between the new legal profession and the new economic and political forces that were emerging in America.”

[30] Id. at 11; Hellman, Benjamin N. Cardozo at 10 (“one of the most brilliant judges in the Supreme Court”).

[31] Kaufman, Cardozo at 15, 18.

[32] Id. at 17-19.

[33] Id. at 27. Albert Cardozo left an estate of $100,000. Id. at 42. Cardozo practiced law in the law firm his father established before his death. Richard Polenberg, The World of Benjamin Cardozo 44-45 (

[34] Kaufman, Cardozo at 112.

[35] Cardozo was always a prodigious worker, normally 12-14 hours per day. Hellman, Benjamin N. Cardozo at 122; “He was a hermit, devoting himself exclusively to work.” Polenberg, The World of Benjamin Cardozo 45 (1999).

[36] C.D. Bowen, Yankee from Olympus 207 (1944). Holmes’ father also said, “A lawyer can’t be a great man.” Id. at 202. Also, “If you would wax thin and savage, like a half-fed spider, be a lawyer.” Id. at 253.

[37] “I [Cardozo] sweat blood over every page.” Hellman, Benjamin N. Cardozo at 139.

[38] Posner, Cardozo, A Study in Reputation at 10.

[39] Id. This is attributable to Jerome Frank, another prominent judge, and a Jew. According to Posner it was an anonymously written article. Id. See Anon Y. Mous, The Speech of Judges: A Dissenting Opinion, 29 Virg. L. Rev. 625, 630 (1943). Frank’s critical comments are almost anti-Semitic.

[40] Hellman, Benjamin N. Cardozo at 237.

[41] Max Lerner, The Mind and Faith of Justice Holmes, XLVI 450-451 (1943).

[42] Kaufman, Cardozo at 455-471 for the process of Cardozo’s appointment. “Cardozo’s appointment was greeted with an outpouring of approval[.]” Id. at 469.

[43] C.D. Bowen, Yankee from Olympus at 412; Holmes, et al., Holmes & Frankfurter at 269 (“Like you I rejoice in Cardozo.”).

[44] Posner, Cardozo, A Study in Reputation; Hellman, Benjamin N. Cardozo at 243.

[45] Posner, Cardozo, A Study in Reputation at 4 (“Cardozo was already suffering from coronary artery disease when he joined the Supreme Court.”).

[46] “He was ‘wretchedly homesick’ and despondent.” Kaufman, Cardozo at 472, 686 n.1. Cardozo much preferred the collegiality and the homeliness on the N.Y. court of appeals. When in session, they all stayed at the same boarding house. Hellman, Benjamin N. Cardozo at 203-204, 247-248; Kaufman, Cardozo at 137.

[47] Posner, Cardozo, A Study in Reputation at 5.

[48] Kaufman, Cardozo at 566-567.

[49] Hellman, Benjamin N. Cardozo at 123.

[50] Benjamin Cardozo, The Nature of the Judicial Process (1921). This and Cardozo’s other extra-judicial writings are compiled in Leslie B. Abrams, Jr., Cardozo on the Law (The Legal Classics Library 1982).

[51] Benjamin Cardozo, The Growth of the Law (1924).

[52] Benjamin Cardozo, The Paradoxes of Legal Science (1927).

[53] Benjamin Cardozo, Law and Literature and Other Essays and Addresses (1931).

[54] Kaufman, Cardozo at 204, 217-219.

[55] One reference was to it being “hard-core pornography,” and Cardozo was “courting impeachment.” Posner, Cardozo, A Study in Reputation at 12. See Grant Gilmore, The Age of American Law 75-77 (1977).

[56] Cardozo, The Growth of the Law 142-143 (1924).

[57] Cardozo, The Nature of the Judicial Process at 32 (quoting Lord Halisbury in Quinn v. Leathem, 1901 A.C. 495, 506).

[58] Cardozo, Law and Literature at 7; Posner, Cardozo, A Study in Reputation at 43 (emphasis added).

[59] See MacPherson v. The Buick Co., 217 N.Y. 372 (1916); H.R. Moch Co. v. Rensslear Water Co., 247 N.Y. 460 (1928); Ultramares Corp. v. Touche, 255 N.Y. 170 (1931). See also Kaufman, Cardozo at 310-312.

[60] See generally Paul Freund, Foreword: Homage to Mr. Justice Cardozo, 1 Cardozo L. Rev. 1 (1979) (pro); Mous, The Speech of Judges (con); Alfred S. Konifsky, How to Read, or at Least Not Misread, Cardozo in the Allegheny College Case, 36 Buffalo L. Rev. 647 (1987).

[61] Posner, Cardozo, A Study in Reputation at 141-143.

[62] Id. at 47, 145 & n.1, 146.

[63] Id. at 36. Jury awarded $6,000 damages, probably around $90,000 today.

[64] Palsgraf v. Long Island Railroad, 222 App. Div. 166, 225 N.Y. Supp. 412 (1927).

[65] See Randolph Bergstrom, Courting Danger: Injury and Law in New York City 1870-1980 (1992).

[66] The word “janitor” comes from the record. Posner, Cardozo, A Study in Reputation at 29. Cardozo has been criticized for not relating to ordinary people. W. Keeton, et al., Prosser and Keaton on the Law of Torts 284 n. 1 (5th ed. 1984).

[67] See, e.g., Rochester Lime Co., 219 N.Y. 60, 62 (1916) (dynamite box in Erie Canal); Bird v. St. Paul Ins. Fire & Marine Ins. Co., 224 N.Y. 47, 49 (1918) (boat damaged by an explosion); Greene v. Sibley, Lindsey and Curr, Co., 257 N.Y. 190, 191-192 (1931) (shopper fell over mechanic).

[68] Cardozo allegedly tinkered with the facts in other cases. Birmingham, A Study After Cardozo: DeCicco v. Schweitzer, Noncooperative Games, and Neutral Computing, 47 U. Mia. L. Rev. 121, 130 (1992). See also Posner, Cardozo, A Study in Reputation at 43 (“Cardozo defended the right of a judge to deliberately misstate the facts.”).

[69] Palsgraf, 248 N.Y. at 340-341 (emphasis added).

[70] Cardozo describes the scale “being ‘at the other end of the platform, many feet away,’ but this characterization has no basis in the record which discloses neither the location of the scale nor its distance from the explosion.” Posner, Cardozo, A Study in Reputation at 39. See Case on Appeal, 46-47, HLS.

[71] No basis in record for scales’ location by Cardozo. Posner, Cardozo, A Study in Reputation at 39-40. The New York Times said the scales were 10 feet away. Id. at 34. Cardozo had the scales and Palsgraf “standing far away.” Kaufman, Cardozo at 298.

[72] Palsgraf, 248 N.Y. at 346.

[73] Thirteen people were injured and sent to the hospital, except Palsgraf. Kaufman, Cardozo at 286.

[74] Palsgraf, 248 N.Y. at 343.

[75] Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).

[76] Palsgraf, 248 N.Y. at 346-347.

[77] Id. at 339, 345 (emphasis added).

[78] (Injury on street car aggravated by subsequent weather.) Ehrgott eschewed foreseeability for duty, whereas Palsgraf did not. The overruling analysis is from Kaufman, Cardozo at 300.

[79] Id. at 138-139; Posner, Cardozo, A Study in Reputation at 13.

[80] Palsgraf, 248 N.Y. at 347.

[81] Kaufman, Cardozo at 130; Posner, Cardozo, A Study in Reputation at 129.

[82] Palsgraf, 248 N.Y. at 350 (“danger zone”).

[83] McCain v. Florida Power Corp., 593 So. 2d 500, 502 (Fla. 1992) (“The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others.”); Biglen v. Florida Power & Light Co., 910 So. 2d 405, 408 (Fla. 4th DCA 2005) (“zone of risk”). See William Drake, Foreseeable Zone of Risk: Confusing Foreseeability with Duty in Florida Negligence Law, 78 Fla. B. J. 10 (Apr. 2004).

[84] Palsgraf, 248 N.Y. at 347, 355-356.

[85] Kaufman, Cardozo at 302.

[86] Posner, Cardozo, A Study in Reputation at 34.

[87] Id. at 35.

[88] Id. at 35, 46.

[89] Id. at 35.

[90] Id. at 34.

[91] Posner, Cardozo, A Study in Reputation at 34, 39.

[92] Palsgraf, 248 N.Y. at 356 (“How far cannot be told from the record — approximately [20] — five or [30] feet. Perhaps less.”).

[93] Kaufman, Cardozo at 655, n. 31.

[94] Id. at 286.

[95] Posner, Cardozo, A Study in Reputation at 34.

[96] See generally William Manz, The Palsgraf Case: Courts, Law, and Society in 1920s New York (2005); William E. Nelson, Palsgraf v. Long Island R.R.: Its Historical Context, 34 Touro L. Rev. 281 (2018); Walter Otto Weyrauch, Law as Mask — Legal Ritual and Relevance, 66 Calif. L. Rev. 699 (1978); William Prosser, Palsgraf Revisited, 52 Mich. L. Rev. 1 (1953); W. Jonathan Cardi, The Hidden Legacy of Palsgraf: Modern Duty Law In Microcosm, 91 Boston U. L. Rev. 1873 (2011) as a few examples.

[97] O.W. Holmes, The Common Law 116-117 (1881).

[98] Hynes, 231 N.Y. at 231-233 (emphasis supplied) (citations omitted).

[99] “Minority rule,” Posner, Cardozo, A Study in Reputation at 41.

[100] Kaufman, Cardozo at 302.

[101] Joseph Little, Palsgraf Revisited (Again), 6 Pierce L. Rev. 75, 84-88 (2007-2008).

[102] See Freund, Foreword: Homage to Mr. Justice Cardozo.

[103] Hellman, Benjamin N. Cardozo at 179 (“He was pre-eminently a lonely man.”) Id.; Kaufman, Cardozo at 490.

[104] “These are the last words I have to say.” (Billy Joel, “Famous Last Words,” River of Dreams (1993)).


Larry M. Roth is a Florida lawyer and the author of A Lawyer in Pinstripes (Dorrance Pub. 2017).