« Final version of How Should Punitive Damages Work? now available | Main | In the Mail: Looseleaf Casebooks! »

Friday, May 29, 2009

Hispanic or Not, The Man Could Write

All the recent talk about whether Justice Cardozo was in fact the first Hispanic justice gives me a chance to share what I consider one of the great lines in the U.S. Reports.  In 1936 the Court decided two companion cases dealing with equal protection challenges to a New York milk marketing law.  In one of the cases, Borden's Farm Products v. Ten Eyck, 297 U.S. 251 (1936), the Court upheld part of the law, on a 5-4 vote with the Four Horsemen dissenting.  In the next case, Mayflower Farms v. Ten Eyck, 297 U.S. 266 (1936), Justice Roberts switched sides and the Court struck down the other provision, with Cardozo writing the dissent.  Cardozo's dissent begins with this beautifully understated zinger:

"The judgment just announced is irreconcilable in principle with the judgment in Borden's Case, 297 U.S. 251, 56 S.Ct. 453, 80 L.Ed. 669, announced a minute or so earlier."

Whatever label we give to his ethnicity, the man could write a good line.

Posted by Bill Araiza on May 29, 2009 at 08:44 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Hispanic or Not, The Man Could Write:


He is even better than you give him credit for, since the original opinion would not have had the chain of string cites that so impede its flow.

Posted by: TJ | May 29, 2009 4:48:50 PM

I tend to think of Cardozo as someone who sounds good, but who often doesn't make a whole lot of sense. To pick a classic from a tax case on the meaning of "ordinary and necessary expenses," Welch v. Helvering (1933). How do you tell what expenses are ordinary? Cardozo writes:

The line of demarcation is now visible between the case that is here and the one supposed for illustration. We try to classify this act as ordinary or the opposite, and the norms of conduct fail us. No longer can we have recourse to any fund of business experience, to any known business practice. Men do at times pay the debts of others without legal obligation or the lighter obligation imposed by the usages of trade or by neighborly amendities, but they do not do so ordinarily, not even though the result might be to heighten their reputation for generosity and opulence. Indeed, if language is to be read in its natural and common meaning (Old Colony R. Co. v. Commissioner, 284 U.S. 552, 560, 52 S.Ct. 211, 76 L.Ed. 484; Woolford Realty Co. v. Rose, 286 U.S. 319, 327, 52 S.Ct. 568, 76 L.Ed. 1128), we should have to say that payment in such circumstances, instead of being ordinary is in a high degree extraordinary. There is nothing ordinary in the stimulus evoking it, and none in the response. Here, indeed, as so often in other branches of the law, the decisive distinctions are those of degree and not of kind. One struggles in vain for any verbal formula that will supply a ready touchstone. The standard set up by the statute is not a rule of law; it is rather a way of life. Life in all its fullness must supply the answer to the riddle.

Um, okay.

Posted by: Orin Kerr | May 29, 2009 12:41:07 PM

The comments to this entry are closed.