Professor Nagel's Reflections on Cardozo

Authors

Anthony D'Amato, Northwestern University School of Law

Abstract

In the first issue of the Cardozo Law Review, Professor Ernest Nagel, in Reflections on "The Nature of the Judicial Process," criticized Justice Cardozo's professed abandonment of the distinction between custom and law. Professor Anthony DAmato, in Judicial Legislation, argued that Cardozo's opinions belied his assertion of the necessity for judicial legislation, and adhered generally to the theory that cases should be decided in accordance with law as it is found, rather than made, by judges.

In this commentary, Professor D'Amato argues that Professor Nagel's assertion of a distinction between law and custom is inconsistent with the development of the common law, and that the assertion of judicial discretion to decide cases in accordance with custom provides an insufficient explanation of the anamoly. Professor Nagel rejoins that appellate courts have sufficient discretion to legislate; that this view is consistent with the history of the common law; and that there is no compelling reason for abandoning the distinction between custom and law.

Keywords

International Law, Jurisprudence, Criminal Law and Procedure, International Criminal Law

Recommended Citation

Anthony D'Amato, Professor Nagel's Reflections on Cardozo, 2 Cardozo L. Rev. 589 (1981).
https://larc.cardozo.yu.edu/clr/vol2/iss3/5