Justice Benjamin Cardozo evaluates the elements he believes motivate judges in deciding cases in The Nature of the Judicial Process. Judge Cardozo focuses primarily on common-law courts deciding common-law cases. Although state-court dockets cover a wider variety of topics today and the legal landscape has changed, The Nature of the Judicial Process remains influential. The basis of Judge Cardozo’s approach is to first extract principles from past cases and apply them to new fact situations. Cardozo refers to this process as the method of philosophy. As precedent cannot readily solve all new disputes, this process may require judges select from competing solutions. In circumstances where precedent or statutes are unhelpful because of ambiguity, Cardozo recommends relying on other methodologies to help provide clarity. A judge may apply the method of history by examining a rule’s evolution, scope, and relevance. Or alternatively, employing the method of tradition by exploring professional or trade usage, or the predominant standard of conduct. Important to reaching a just outcome, these methodologies must balance against public utility and social interest, as well as stability and progress. A judge must make decisions with great care. Poor decisions leave the judiciary exposed to criticism that the judicial process is personal, arbitrary, and irrational. Decisions should avoid influences of a judge’s own philosophies, convictions, or aspirations. Opinion writing helps provide a restraining influence on the judiciary. Publication requires defending the logic used to arrive at the decision. Personal restraint may best satisfy the requirements of judicial discretion. Arguably, proper selection of the right people to serve as judges is the most important factor to ensure judicial discretion.
St. Mary's University School of Law
Shirley S. Abrahamson,
Judging in the Quiet of the Storm.,
St. Mary's L.J.
Available at: https://commons.stmarytx.edu/thestmaryslawjournal/vol24/iss4/2
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