Elected to the New York Supreme Court in 1913, to the New York Court of Appeals in 1917, and appointed to United States Supreme Court in 1932, Cardozo was one of the good judges. 1 Earlier commentators ignored the precedents Cardozo cited or refused to take seriously the limits of his rulings. Kaufman shares Cardozo's vision that good judging in a democracy somehow embodies community standards. Kaufman has both in mind. He argues that Cardozo made major contributions to negligence law by making foreseeability of harm key to establishing duty.
History never lapses into a simple-minded tale of ever onward and upward here.
5 Kaufman's interest in the relation between life and law comes out on several levels. Posner, a judge, made this point and called for more attention to judicial rhetoric rather than judicial logic. Kaufman implies that the academics could do a better job of imagining their subject's work. Point taken, although it is marred by the bizarre hypotheticals debated by Cardozo, Learned Hand, and others who were drafting the American Law Institute's Restatement of Torts earlier in the chapter. Maybe they were acting like law professors.