2.5.4. The Mid-Atlantic States (1900-1925): Key Lawyers and Judges

Benjamin N. Cardozo (New York Court of Appeals, 1914-1932)

  • Cardozo is arguably the most celebrated American state judge of the 20th century.  Through his carefully-cultivated influence with his colleagues on the New York Court of Appeals and the legal academic community, which had an increasing role in shaping American law, Cardozo quietly laid the foundation for major changes in contract and tort law which came to fruition in the decades after his death. 
  • Cardozo was born in 1870, a member of a family prominent in New York City’s Sephardic Jewish community and the son of a state judge appointed by “Boss Tweed” who was forced to resign in the wake of the Tweed scandals and died soon after.  The scandal, his community’s tradition of contemplative intellectualism and feelings of otherness are all thought to have shaped Cardozo’s views of life and law, as well as the often Delphic and playful language of his decisions. 
  • After completing his legal training, Cardozo practiced law for two decades and was elected a trial judge in 1913 on a reform ticket; soon after, he was designated to sit on the Court of Appeals and later won election to a permanent seat.  Cardozo’s gifts included the rare combination of intellectual vision and an ability to bring his colleagues around to that vision in a non-intimidating manner.  In the words of one biographer, his success lay in “his ability to sugar-coat the pragmatist pill … so that not only his judicial colleagues but the entire legal establishment accepted him as a consummate insider rather than fearing him as a bomb-throwing radical.” 
  • Cardozo’s book The Nature of the Judicial Process (1921) set forth his view that judges should, where necessary, take a moderately active role in re-shaping the common law to meet contemporary social needs; it gained him a national reputation.  On the bench, Cardozo gradually persuaded his colleagues to chip away at traditional notions of contract and tort privity, which held that persons could only be liable to those with whom they had direct contact.  His most famous decision, McPherson v. Buick Motor Co. (1916), effectively removed the privity barrier in product liability cases, making manufacturers as well as retailers directly liable to consumers who were injured by their products.  Cardozo was also a frequent defender of free speech and civil liberties in an era when many judges were not.
  • Cardozo’s reputation was such that he was appointed to the U.S. Supreme Court to replace Oliver Wendell Holmes when Holmes retired in 1932.   Cardozo served only six years, dying in 1938.  His years in Washington were productive but his real fame and contributions come from his service as a state judge.    

Cuthbert W. Pound (New York Court of Appeals, 1915-1934)

  • Pound was born in Lockport in 1864; after completing his legal training he practiced law and served briefly as a local official and state senator before teaching law at Cornell (1895-1904).  He was then appointed a state trial judge; like Cardozo, he was designated to serve on the Court of Appeals and subsequently elected to his post. 
  • Like Cardozo, Pound was a pragmatic liberal who was willing to change the common law incrementally to accommodate contemporary social needs; he was also a stout defender of the legislature’s right to enact broad reform laws.  Pound was the author of the court’s seminal decisions in LaFetra (1921), upholding the state rent-control law, and Nebbia (1933), upholding the state’s right to set fair competition codes for milk and other industries during the Depression.  Like Cardozo, Pound was also a strong defender of free speech:  they were the only dissenters from the court’s Gitlow decision (1922).  In his dissent Pound advance the theme, sounded by many judges since his time, that constitutional free-speech guarantees are intended to protect even – indeed, particularly – the most vile speech provided that it does not cause any direct threat to life or property.
  • Pound succeeded Cardozo as chief judge of the court when Cardozo left for Washington in 1932; he retired from the court in 1934 and died soon afterwards. 
Benjamin Cardozo (New York) - courtesy Library of Congress

Cuthbert Pound (New York) - courtesy Historical Society of the Courts of the State of New York