In his seat on the nation’s preeminent state court, Cardozo had a profound influence on the development of 20th-century American law, especially in the area of common-law cases. The common law consists of those legal doctrines established not by legislatures but by the accumulation of judicial decisions. Cardozo earned nationwide fame as a judge able to shape the law to the needs of contemporary society without seeming to shatter its existing form. “Justice,” he would write during this period, “is not to be taken by storm. She is to be wooed by slow advances.” In this wooing Cardozo excelled. Progressive yet restrained, his opinions stretched legal doctrines to accommodate modernity widiout seeming to violate their spirit. Many ol Ills decisions had an extraordinary impact on the development of the law and some continue to be the object of study by law students aspiring to grasp the elements of legal reasoning.
Soon after arriving on the New York court, for example, Cardozo wrote the opinion in MacPherson v. Buick Motor Company (1916), one of the most important cases in the history of product liability law. Prior to MacPherson, in¬dividuals injured by a defectively manufactured product often had no legal recourse against the manufacturer of that product because they had no contractual relationship, or no “privity,” with the manufacturer. Consumers normally buy their products from dealers rather than from manufacturers, and the doctrine of “privity” shielded manufacturers from claims that they had built their products carelessly. In MacPherson, however, Cardozo argued that the manufacturer of a defective product should know that the product would eventually fall into the hands of a consumer who might be in¬jured by it, and that this knowledge was sufficient cause for holding the manufacturer accountable for defective products. Courts and legislatures around the country soon followed Cardozo’s reasoning. Generations of law students have also studied Cardozo’s opinion in Palsgraf v. Long Island Railroad Co. (1928), which refused to hold a railroad liable for a passenger who was injured on a railway platform, because the nature of her injury had been too unusual for the railroad to have foreseen and taken steps to prevent.
To his growing reputation as a judge, Cardozo added that of legal scholar. Invited by the Yale Law School to deliver a series of lectures there, Cardozo eventually published them as The Nature of the Judicial Process (1921) and The Growth of the Law (1924). Toward the end of the 1920s, he lectured at Columbia University and published the results as The Paradoxes of Legal Sciences (1928). In these scholarly works, especially The Nature of the Judicial Process, Cardozo attempted to explain how judges decided cases. Many cases, he believed, had only one plausible result. But some involved situations where the case might reasonably be decided either of two conflicting ways and where the judicial resolution of the question might have substantial impact on the future course of the law. Cardozo was frank about the significance of this later circumstance: Judges did not simply find the law, they made the law. “Here,” he declared, “come into play . . . balancing of judgment. . . testing and sorting of considerations of analogy and logic and utility and fairness. . . . Here it is that the judge assumes the function of a lawgiver. ... I have grown to see that the process in its highest reaches is not discovery but creation. . . .”
Party affiliation: Democratic Party