Posner’s Anxiety, Cardozo’s Influence

shackles.jpgHarold Bloom’s The Anxiety of Influence is a theory of ambivalence that “strong poets” feel toward influential predecessors and techniques successors use to fight resulting anxiety of influence. One detects hints of a parallel story in Richard Posner’s encounters with Benjamin Cardozo.

Bloom highlighted Wordsworth’s struggle with Milton. The thesis is that poetic influence is no simple transfer of method from strong predecessors to strong successors. The process makes life difficult for successors when predecessor influence is so hefty that strong successors cannot absorb it passively. They fight to avoid having predecessor’s power subordinate the successor to the status of imitator.

Strong successors fight the anxiety of influence to secure creative space. The fight is hard, given how predecessors influence not only a successor’s world but the successor’s contemporaries, equally under the influence that produces the anxiety. Strong successors cannot ignore strong predecessors but cannot passively absorb them. Strong predecessors must be reread (even misread), revised, undone, and completed—and still their shadow persists.

Posner may be Wordsworth to Cardozo’s Milton, or so I speculate in the conclusion to a draft article called Cardozo and Posner: A Study in Torts (companion to my 1995 Cardozo and Posner: A Study in Contracts). Bloom posits four phases of the process strong successors endure to battle the anxiety of influence against their strong predecessors, that I adapt and rename: (1) revising Cardozo down; (2) completing Cardozo; (3) undoing Cardozo; and (4) the haunting Cardozo.


1. Revising Cardozo Down. Posner demotes any conception of Cardozo as a pragmatic judge. Posner allows that Cardozo had good intuitions of substantive justice and wrote well. But his opinions suffered from “plummy” rhetoric and “characteristic stylistic and analytic flaws.” The main one was the “substitution of words for thought.” Many Cardozo opinions are famous for stylistic reasons Posner says, like how they are short on facts, enabling longer shelf life because less easily distinguished by later lawyers and judges. He sniffs at Palsgraf, MacPherson, Wagner and Glanzer.

All this amounts to something of what Bloom called a swerve. It takes Cardozo out of positions to which others had accustomed him. Cardozo is seen as a pragmatist. His use of words is classified as a rhetorical gift, though critics share the view that it can be ornate. But to say there is a lack of thought is unusual. The fame of Cardozo’s opinions is not routinely attributed to style or handling of facts.

2. Completing Cardozo. Having revised Cardozo down, Bloom’s analysis predicts that Posner would show how to complete the strong predecessor judge. Posner offers economic analysis as the tool Cardozo lacked and that would complete him and that Posner brings to the courthouse. Most generally, Posner credits Cardozo’s intuitions of substantive justice but says he “principally lacked . . . an incisive framework . . . for policy analysis such as modern economic analysis provides.”

Posner shows how Cardozo’s opinion could have been strengthened by adding economic analysis. He shows them to be “proto-economic analysis,” incomplete, but with great promise, to be improved by rigorous application of the Hand formula, formal cost-benefit calculus, or linking moral impulses to commercial expectations and capacity for self-protection.

This is an exercise in what Bloom calls “completion” to the extent one could accept Cardozo’s opinions on their own, strong enough. Certainly they were durable opinions before economic analysis of law achieved its commanding status and remain durable opinions decades since that achievement. It is not obvious that the opinions would actually be stronger by add Posner’s suggestions.

3. Undoing Cardozo. Bloom’s third phase involves a strong successor making a discontinuity break with the strong predecessor to enable a new kind of product that the latter could not have written. Evidence is Posner’s sympathy that Cardozo did not have available to him the tools of modern economic analysis: “He can hardly be blamed for failing to use tools developed long after his death,” Posner said of Cardozo. Posner helped to invent those tools in the academy and honed them on the bench. Posner undoes Cardozo by offering a kind of opinion that Cardozo could not have.

In Bloom’s terms, this is a killing of Cardozo’s theory of law, judging and even torts. It is also something of an overstatement, given how Posner hastens to add that Cardozo showed the proto-economic insights Posner would later sharpen. In addition, given the frequency with which Posner would concur or does concur with Cardozo’s results, it is not obvious that these are substantive, functional or productive criticisms. They are criticisms of style, tools and framework. By acknowledging, if undervaluing, the roles of rhetoric and even morality in Cardozo’s ouvre, this amounts to what Bloom calls “kenosis,” an “emptying of theory” from Cardozo’s jurisprudence by highlighting the absence of thoroughgoing economic analysis.

4. The Haunting Cardozo. Despite, or maybe consistent with, a strong successor’s battle with the anxiety of influence through revising down, completing and undoing, the strong predecessor always haunts, especially in the successor’s strongest performance, Bloom’s theory says. For Posner, the haunting of Cardozo appears in several cases, especially where Posner draws on famous Cardozo opinions to discover new uses for them. Not content with Cardozo’s precedents as they sat on the shelf, Posner adds economic analysis. But this does more to cast Cardozo’s long doctrinal shadow over Posner’s economic virtuosity than to sustain the effort to revise, complete and undo Cardozo.

Despite succesful revising, completing and undoing , Bloom warns that that the strong dead return, even showing up in their strong successor’s work. Posner writes like Cardozo sometimes and even shows the occasional moralizing tendency. Cardozo would handle many Posner opinions in ways similar to how Posner handles them—in result if not in economic reasoning or adornment. In these cases, Posner may do what Bloom says only strong successors can: “achieve a style that captures and oddly retains priority over their precursors, so that the tyranny of time almost is overturned, and one can believe, for startled moments, that they are being imitated by their ancestors.”

Notes

HT/Inspiration: Charles M. Yablon, Grant Gilmore, Holmes, and the Anxiety of Influence, 90 Nw. U. L. Rev. 236 (1995) (applying Bloom’s theory to Gilmore’s Death of Contract).

Posner quotes are from his book, Cardozo: A Study in Reputation.

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5 Responses

  1. Vladimir says:

    Lawrence,

    This project brought a big smile to my face. It sounds wonderful and exciting. If you haven’t already, check out Walter Jackson Bate’s “The Burden of the Past and the English Poet” (1970), a book published shortly before Bloom’s, which makes similar points, perhaps more elegantly and certainly less grandly. It’s a short book, and a treasure.

  2. Christa says:

    How fun!
    I’m curious about methods, unless they are secret: did you read Bloom’s The Anxiety of Influence and then think of the comparisons to Posner and Cardozo, did you find the comparisons first and then search for the right container, or did you remember Bloom’s The Anxiety of Influence from reading it some time previously so that you could access it in your mind as you were writing your article?

  3. Paul Gowder says:

    Cue comparisons to academia, especially academics’ relationships to their advisers.

  4. Lawrence Cunningham says:

    Thanks to all three for the kind words and good comments. Re Christa: Nice question and the answer is somewhat complex. In short, though, it was always in the back of mind to bring Bloom into the picture But at the end, after the entire draft was written, with analysis unaffected by the prospect. When done, I went back to Bloom and did the thinking, and it actually fit.