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The Nature of Judicial Review, 91 Yale Law Journal 486 (1982)


In The Nature of the Judicial Process, Cardozo is concerned with the sources of common law: how do judges decide cases; what counts as justification for decisions that rest uneasily, if at all, on precedent and that are not required by a written text? Although evidently struck by the power common-law judges exercise in such situations, Cardozo was not moved to question the legitimacy of that power. Instead, he considered it sufficient to explain and classify the various methods courts use in reaching decisions. This predominantly descriptive approach assumes, among other things, that judges ought to make the common-law, that is, ought to fashion principles and policies into standards of decision. Cardozo's assumption remains the conventional understanding: while we may disagree strongly with particular decisions, we rarely question the authority of common-law courts, even in pivotal cases.

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