Friday, June 13, 2008
Cardozo as Yoda
With all due deference to Rick Garnett's apt observation about Justice Kennedy, Justice Cardozo was doing Yoda-speak long before Yoda was a gleam in George Lucas' eye. The fact that I'm in Michigan without access to my full Cardozo collection limits my examples, but how about these from the classic (and wrong) majority opinion on fiduciary duties in Meinhard v. Salmon:
No answer is it to say that the chance would have been of little value even if seasonably offered.
Little profit will come from a dissection of the precedents. None precisely similar is cited in the briefs of counsel. What is similar in many, or so it seems to us, is the animating principle. . . . Certain at least it is that a “man obtaining his locus standi, and his opportunity for making such arrangements, by the position he occupies as a partner, is bound by his obligation to his copartners in such dealings not to separate his interest from theirs, but, if he acquires any benefit, to communicate it to them.”
Conduct subject to that reproach does not receive from equity a healing benediction.
Perhaps in common usage to be found a clue is: "They are not without their force if conduct is to be judged by the common standards of competitors." Indeed, see one can from classic statement of the law this is that even when not in Yoda-speak, Judge Cardozo only one verb-positioning away was:
Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the “disintegrating erosion” of particular exceptions.
Speaking of which, is it just me, or was Justice Cardozo reincarnated as Conan O'Brien?
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As a fellow Stanford alum, Jeff may remember that in the 1980s Professor William Cohen had a full Supreme-Court-as-sci-fi-characters routine: White as Spock ("pure intellect"); Rehnquist as Darth Vader; and Brennan as Yoda. Cohen, channeling Brennan-as-Yoda: "Make you a liberal I will."
Posted by: Mike Madison | Jun 13, 2008 5:03:48 PM
After my time, unfortunately, Mike. The original Star Wars came out in my first year, and Yoda had not appeared by the time I graduated. Cohen was still doing his "ratchet" thing, railing against Gunther's "means scrutiny" and talking about moving the Capitol to the bottom of the Potomac.
Posted by: Jeff Lipshaw | Jun 13, 2008 6:34:49 PM
"Speaking of which, is it just me, or was Justice Cardozo reincarnated as Conan O'Brien?"
Good gracious. When I saw his picture, that was the exact thing that popped into my head, and I was going to comment on it, until I scrolled down farther and saw the Conan picture. It's uncanny.
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