[In the following essay on The Nature of the Judicial Process, Dodd focuses on Cardozo's explanation of the various factors that influence the decisions of appellate courts.]

Seldom in a similar space will a student of legal institutions find so much of interest as in these lectures of Judge Cardozo [The Nature of the Judicial Process]. With a wealth of knowledge and a felicity of practical illustration the author outlines the influences which actually mould the judgments of appellate courts. He draws aside the veil of judicial sanctity, and shows that judges have their views determined by all the influences which control their judgment as men and as lawyers. The author's point of view is illustrated by the following quotation: "Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge.… There has been a certain lack of candor in much of the discussion of the theme, or rather perhaps in a refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations. I do not doubt the grandeur of the conception which lifts them into the realm of pure reason, above and beyond the sweep of perturbing and deflecting forces. None the less, if there is anything of reality in my analysis of the judicial process, they do not stand aloof on these chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do. The great tides and currents which engulf the rest of men, do not turn aside in their course, and pass the judges by."

Judge Cardozo limits his discussion almost entirely to the relatively small number of cases "where a decision one way or the other, will count for the future, will advance or retard, sometimes much, sometimes little, the development of the law. These are the cases where the creative element in the judicial process finds its opportunity and power." The number of these cases is actually not small, when we include within it (as we must) the body of cases dealing with questions of constitutional and statutory construction; and these cases have an importance out of proportion to their number.

Judge Cardozo's attitude toward the various forces influencing judicial action is illustrated by the following quotation, "My analysis of the judicial process comes then to this, and little more: logic, and history, and custom, and utility, and the accepted standards of right conduct, are the forces which singly or in combination shape the progress of the law. Which of these forces shall dominate in any case, must depend largely upon the comparative importance or value of the social interests that will be thereby promoted or impaired." Judge Cardozo properly assumes that in appellate courts the eccentricities of individual judges are not so important, but tend to balance each other in the long run.

It is impossible in a brief review to do more than call attention to the excellence of this little book. Those who do not read it will miss a stimulating contribution to the discussion of our legal institutions.