No CrossRef data available.
Article contents
American Legal Theory and American Legal Education: A Snake Swallowing its Tail?
Published online by Cambridge University Press: 06 March 2019
Extract
Core share and HTML view are not available for this content. However, as you have access to this content, a full PDF is available via the ‘Save PDF’ action button.
My story is a story about American Legal Realism. It is part of an attempt to understand what Realism was by addressing the question, “Why is the study of Realism a subject of legal history and not of current events?” Of course, the “answer” to such a question is made up of several partial answers, of which what follows is but one. Others would talk about the relationship between legal doctrine and capitalist economic development or about legal theory and political philosophy or about legal theory and legal practice, to name a few examples. However, this partial answer can best be approached by examining how a simple idea about law - the liberal idea of the rule of law in its guise as the “rule theory of law” - has had in its rise and in its demise an impact on legal education and to attempt to understand why that is so. My attempt however, requires that I start my story back aways with Christopher Columbus Langdell and the Harvard Law School.
- Type
- Articles
- Information
- German Law Journal , Volume 12 , Issue 1: Critical Legal Thought: An American-German Debate—Republication [with a new Introduction] Twenty-Five Years Later — , 01 January 2011 , pp. 67 - 95
- Copyright
- Copyright © 2011 by German Law Journal GbR
References
1 Norbert Reich supplied this elegant substitute for all sorts of awkward phrases.Google Scholar
2 Chase, Anthony, The Birth of the Modern Law School, 23 Am. J. Legal Hist. 329 (1979); Chase, Anthony, Origins of Modern Professional Education: The Harvard Case Method Conceived as Clinical Instruction in Law, 5 Nova L. J. 323 (1981)Google Scholar
3 Grey, Thomas C., Langdell's Orthodoxy, 45 U. Pitt. L. Rev. 1 (1983)Google Scholar
4 Gilmore, Grant, The Ages of American Law 42 (1977)Google Scholar
5 Which Tony Chase has clearly tried to do in his work.Google Scholar
6 Gordon, Robert W., Legal Thought and Legal Practice in the Age of American Enterprise 1870-1920, in Professions and Professional Ideologies in America, 70 (Geison, Gerald L. ed., 1983)Google Scholar
7 See, supra, note 3.Google Scholar
8 Kennedy, Duncan, Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940, in Research in Law and Sociology 3 (Spitzer, Stephen ed., 1980)Google Scholar
9 Beale, Joseph H., A Treatise on the Conflict of Laws 2 (1935)Google Scholar
10 Id., 23.Google Scholar
11 Id., 25.Google Scholar
12 Id., 27-28.Google Scholar
13 Id., 28.Google Scholar
14 Id., 30.Google Scholar
15 Id., 39.Google Scholar
16 Id., 40. Google Scholar
17 Id., 45-48.Google Scholar
18 Origins of Modern Professional Education (note 2). But cf. Anthony Chase, Lawyer Training in the Age of the Department Store, 78 Nw. U. L. Rev. 893, 906-08 (1983).Google Scholar
19 See, e.g., Langdell, Annual Report on the Law School, in Annual Report of the President and Treasurer of Harvard College 1883-84, 100-107; Langdell, Annual Report on the Law School, in Annual Reports of the President and Treasurer of Harvard College 1884-85, 112-16; Langdell, Annual Report on the Law School, in Annual Reports of the President and Treasurer of Harvard College 1887-88, 92-105.Google Scholar
20 Wambaugh, Eugene, Professor Langdell - A View of His Career, 20 Harv. L. Rev. 1 (1906)Google Scholar
21 Langdell wrote about 200 pages of annual reports. In addition he penned the famous Christopher Columbus Langdell, Preface to A Selection of Cases on the Law of Contracts vii (1871); Langdell, Christopher Columbus, The Harvard Law School, 1869-1894, 2 Harv. Grad. Mag. 490 (1894); Speech at 250th Anniversary Dinner, 3 L. Quar. Rev. 123 (1887); and Speech at the 25th Anniversary of Christopher Columbus Langdell as Dean of Harvard Law School, 29 Am. L. Rev. 605 (1895). Out of this only the Preface; the 250th Anniversary Dinner containing the famous passages on legal science, portions of the reports of 1873-74 (importance of division into classes, library as laboratory), 1976–77 (admission to bar in New York, division of bar into attorneys and counsellors) and 1886-87 (importance of a thorough professional education in the science of law, necessity for scholarships to encourage such study); and the Deanship anniversary dinner (listing accomplishments) can even vaguely be said to have anything to do with legal education. Of this, only the brief passages on legal science, which are hopelessly confused can be said to be other than decanal clap trap.Google Scholar
22 The Harvard Law School 1869-1894 (note 21), 479-98Google Scholar
23 Robert Gordon was the first person to point this out to me. A good illustration is found in the story about Langdell's equity course where he found Lumley v. Wagner to be simply wrong. See, Joseph H. Beale, Professor Langdell - His later Teaching Days, 20 Harv. L. Rev. 9, 10 (1906), and in the oft quoted statement, “The vast majority [of cases] are useless, and worse than useless, for any purpose of systematic study”. Preface to A Selection of Cases on the Law of Contracts (note 21), viii.Google Scholar
24 See, supra, note 6, 87.Google Scholar
25 Id., 84, 88.Google Scholar
26 Robert Stevens, Law School: Legal Education in America from the 1850's to the 1980's (1983), 35-42, 51-57Google Scholar
27 The Centennial History of the Harvard Law School 1817-1917 (1918), 36Google Scholar
28 Al Katz pointed this out to me years ago.Google Scholar
29 See, supra, note 26, 38, 60–61.Google Scholar
30 See, supra, note 22.Google Scholar
31 As David Sugarman has now made crystal clear. Sugarman, David, Legal Theory, The Common Law Mind and The Making of the Text Book Tradition, in Legal Theory and Common Law 26 (Twining, William ed., 1986).Google Scholar
32 See, Langdell, Christopher Columbus, Annual Report on the Law School, in Annual Reports of the President and Treasurer of Harvard College 1890-91, 104, 116.Google Scholar
33 See, Schlegel, John Henry, Between the Harvard Founders and the American Legal Realists: The Professionalization of the American Law Professor, 35 Legal, J. Ed. 311 (1985).Google Scholar
34 The issue was still a live one as late as 1910. Langdell's strongest statements came fifteen years earlier. See, supra, note 22.Google Scholar
35 See, supra, note 26, in the source of most of this paragraph.Google Scholar
36 See, e.g., Koenig, Thomas & Rustad, Michael, The Challenge to Hierarchy in Legal Education: Suffolk and the Night Law School Movement, in Research in Law, Deviance and Social Control, 189 (1985).Google Scholar
37 What follows is a summary of the argument in Schlegel, supra, note 33. That in turn draws heavily on Magali Larson, The Rise of Professionalism (1977) and Jerold Auerbach, Unequal Justice: Lawyers and Social Change in Modern American (1976). I have also wrestled with this problem in John Henry Schlegel, Langdell's Legacy, or the Case of the Empty Envelope, 36 Stanford Law Review (Stan. L. Rev.) 1517 (1984). I confess that I suspect that my friends in C.L.S. may well find this argument to be too functionalist and for this reason have chosen to ignore it. On this question see, infra, note 39.Google Scholar
38 Langdell, Christopher Columbus, Annual Report on Law School, in Annual Reports of President and Treasurer of Harvard College 1876-77, 82, 88–92.Google Scholar
39 To speak of “needs” raises the ugly question of “functionalism”. I use “needs” with a certain malice. I am tired of hearing functionalism dismissed as if it were somehow stupid to assert that the products of human activity such as law have or serve functions. While I can understand how one might be upset at the politics of the functionalists of the Post-World War II period, that upset is not an objection to functionalist explanations. A hammer and a crescent wrench may both be used to drive nails into wood. But a bit of work at the task is likely to demonstrate that one of these tools was designed to, is functional for the indicated task and I dare say that an anthropologist in 10,000 years will have little difficulty coming to the same conclusion.Google Scholar
Now, of course, some products of human activity, like legal education or negligence, are substantially more complicated to dope out than hammers and crescent wrenches. Indeed, it may be said that such complex products have multiple functions. (Then again, so do tools. A crescent wrench may be used to drive nails and, as I just checked out, a claw hammer, thought not a ball peen hammer, to tighten bolts and nuts.) But that only implies that the task of understanding the function is more difficult for complex entities.Google Scholar
There is the problem of necessary relationship, I suppose. To say, as I am saying above, that the structure of legal education had a function is not to say that only this structure could have served that function. State legislation directly limiting entry into the profession or a reinvigorated bar coupled with stringent, essentially class biased apprenticeship requirements could have done as well. And understanding why one route rather than others was taken in a society often tells much about that society. (Here the legislative route was unavailable because the relatively less elite legislatures would not go along; they even were unwilling to go along with the lesser entry requirements sought by the law schools. The apprenticeship route was unavailable because the corporate bar simply had no time to train the myriad of apprentices it needed; its desire to support university based education was a recognition that it did not wish the task.) But the existence of hypothetical alternatives or even of similar societies where different alternatives were actually taken does not undermine an assertion about the function of a product of human activity, at least unless one is caught in the clutches of a rather virulent sociological or historical positivism.Google Scholar
40 See, supra, note 6, 82-87 gives content to the notion of the lawyers as the public statesman of Ciceronian virtue.Google Scholar
41 See, supra, note 33, 321.Google Scholar
42 See, generally, Laurence Veysey, Emergence of the American University (1965).Google Scholar
43 See, supra, note 33, 313-14 for a rough description of the process and for sources on some of these disciplines.Google Scholar
44 Id., 319-25. A similar, though by no means identical argument to what follows for the balance of this paper is Arthur Jacobson, Modern American Jurisprudence and the Problem of Power, 6 Cardozo L. Rev. 693 (1985). For its sheer elegance and the power of its categories, Jacobson's paper repays careful reading. At the same time, I am not convinced that the process we both seek to describe is as exclusively intellectual as his paper implies nor do I think he would be convinced that the process is an heavily social as I think it is.Google Scholar
45 See, supra, note 33; Schlegel (note 37) provides support for this proposition. As a brief supplement, I would suggest that the failure of political science and sociology to identify a method appropriate to the discipline accounts for much of the sense that neither is a discipline, as well as for the attraction of a general statistical, empirical method for both disciplines.Google Scholar
46 Gray, John, Select Cases and Other Authorities of the Law of Property (1988-92)Google Scholar
47 Bohlen, Francis, Cases on the Law of Torts (1915)Google Scholar
48 Huffcut, Ernest, Cases on the Law of Agency (1895)Google Scholar
49 wigmore, John, Select Cases on the Law of Torts with Notes and a Summary of Principles (1911-12). A study of why this book was rejected might well illuminate the contours of the late nineteenth and early twentieth century legal academic's intellectual world.Google Scholar
50 See, supra, note 33, 321.Google Scholar
51 No adequate discussion of the impact, if any, of either the Continental Legal History Series or the Modern Legal Philosophy series is available, perhaps, because there was none. The latter is treated briefly in John Henry Schlegel, American Legal Realism and Empirical Social Science: The Singular Case of Underhill Moore, 29 Buffalo Law Review (Buff. L. Rev.) 195, 202 n. 20.Google Scholar
52 Thayer, James, The Teaching of English Law at Universities, 9 Harv. L. Rev. 169, 183 (1895)Google Scholar
53 Ames, James, The Vocation of the Law Professor, in J. Ames, Lectures on Legal History 354 (1913); Ames, James, Remarks, in Proceedings of the Seventh Annual Meeting of the Association of American Law Schools 16 (1907). The precise origin of the phrase “thinking like a lawyer” is unknown to me.Google Scholar
54 See, supra, note 21, 92–103.Google Scholar
55 Id., 39-40.Google Scholar
56 Foundation for Research, in Legal History, A History of the School of Law Columbia University 85-89 (1955).Google Scholar
57 Hohfeld, Wesley, A Vital School of Law and Jurisprudence: Have Universities Awakened to the Enlarged Opportunities and Responsibilities of the Present Day, in Proceedings of the Fourteenth Annual Meeting of the Association of American Law Schools 76 (1914).Google Scholar
58 Id., 128.Google Scholar
59 Pound's work, scattered throughout the pages of the law reviews, is collected in his multi-volume treatise, Jurisprudence (1959) which is largely a compendium of his original articles, complete with original footnotes, with only limited new material. His version of the theory of interests is contained in vol. 3 from pages 5-341. Nathan Roscoe Pound, Jurisprudence (1959) 3, 5-341 (1959).Google Scholar
60 Id., 16, 22.Google Scholar
61 Id., 101-341.Google Scholar
62 Hohfeld, Wesley, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 20 (1913)Google Scholar
63 Id., 30.Google Scholar
64 See, supra, note 59, 233–35.Google Scholar
65 Id., 328.Google Scholar
66 Id., 330.Google Scholar
67 Pound, Nathan Roscoe, The Causes of Popular Dissatisfaction with the Administration of Justice, in 29 Proceedings of the American Bar Association, 400 (1906).Google Scholar
68 See, Singer, Joseph, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, Wisc. L. Rev. 975, 1050-59 (1982).Google Scholar
69 Bingham, Joseph, What is the Law], 11 Mich. L. Rev. 12 (1912)Google Scholar
70 Id., 3.Google Scholar
71 Id., 4.Google Scholar
72 Id., 9.Google Scholar
73 Jurisprudence Not an Objective Science, 25 The Green Bag 74 (1913)Google Scholar
74 Id., 75.Google Scholar
75 Wesley N. Hohfeld to Roscoe Pound, Feb. 25, 1913, in Roscoe Pound Papers, Harvard Law School Archives, Cambridge, MassachusettsGoogle Scholar
76 Holmes, Oliver, The Path of Law, 10 Harv. L. Rev. 457 (1897)Google Scholar
77 Gray, John, The Nature and Sources of Law (1909), a proposition uttered for a thoroughly conservative purpose.Google Scholar
78 Pound, Nathan Roscoe, Mechanical Jurisprudence, 8 Colum. L. Rev. 605 (1908); Pound, Nathan Roscoe, The Scope and Purpose of Sociological Jurisprudence, 24 Harv. L. Rev. 598 (1911), 25 Harv. L. Rev. 515 (1912)Google Scholar
79 See, text and supra, note 68.Google Scholar
80 See, supra, text at notes 69-72.Google Scholar
81 See, supra, note 26, 112–123.Google Scholar
82 See, Schlegel, John Henry, Searching for Archimedes - Legal Education, Legal Scholarship, and Liberal Ideology, 34 Legal, J. Ed. 103, 107 (1984).Google Scholar
83 See, Schlegel, supra, note 51, 233–34.Google Scholar
84 See, supra, note 6, 89.Google Scholar
85 Id. Google Scholar
86 Id., 98.Google Scholar
87 Twining, William, Karl Llewellyn and the Realist Movement (1973); Twining, William, Talk About Realism, 60 New York University Law Review (N.Y.U. L. Rev.) 329 (1985) attempts to develop the notion of a “dissenting tradition” in American jurisprudence, though in a thoroughly implicit fashion. Twining has used the phrase in conversation for years. He puts in the class of pre-Realist dissenters, Holmes, Gray, Corbin, Hohfeld, Pound and Cardozo. In addition to the works of these scholars noted above one needs to recognize Benjamin Cardozo, The Nature of the Judicial Process (1922); Corbin, Arthur, The Law and the Judges, 3 Yale Review 234 (1914); Pound, Nathan Roscoe, Liberty of Contract, 18 Yale L. J. 462 (1909).Google Scholar
88 Dewey, John, Logical Method and Law, 10 Cornell L. Q. 17 (1924) is the usual cite. In fact Dewey's ideas on science were scattered all over until consolidated in John Dewey, Logic (1938)Google Scholar
89 Here, I speak of Jerome Frank's attachment to Freud's theory of the unconscious that permeates Jerome Frank, Law and the Modern Mind (1930)Google Scholar
90 Corbin, supra, note 87Google Scholar
91 Cardozo, supra, note 87Google Scholar
92 See, Schlegel, supra, note 51, 208–09.Google Scholar
93 See, Schlegel, John Henry, American Legal Realism and Empirical Social Science: From the Yale Experience, 28 Buff. L. Rev. 459 (1979), 532-38Google Scholar
94 Id., 522-32, 541-42.Google Scholar
95 See, supra, note 6, 88.Google Scholar
96 Id., 94-96.Google Scholar
97 Much of what follows in this paragraph summarizes Stevens, R., supra, note 26, at 172-199.Google Scholar
98 Id., 136-37.Google Scholar
99 See, Schlegel (notes 51 and 93).Google Scholar
100 Llewellyn, Karl, On What is Wrong with So-Called Legal Education, 35 Col. L. Rev. 65 (1935)Google Scholar
101 Id., 653.Google Scholar
102 See, supra, note 82, 107; Schlegel, supra, note 51, 234.Google Scholar
103 Beale, Joseph, Discussion, in Handbook and Proceedings of the Twenty-Eighth Annual Meeting of the Association of American Law Schools 53 (1928)Google Scholar
104 Id. Google Scholar
105 See, supra, note 73, 74.Google Scholar
106 Kantorowicz, Herman, Some Rationalism about Realism, 43 Yale L. J. 1240 (1934).Google Scholar
107 Id., 1240.Google Scholar
108 Id. Google Scholar
109 Id., 1242.Google Scholar
110 Id., 1251.Google Scholar
111 Id., 1253.Google Scholar
112 Purcell, Edward, The Crisis in Democratic Theory: Scientific Naturalism and the Problem of Value (1973) lays out the entire literature which ranges from the serious and sensible, Lon Fuller, Law in Quest of Itself (1940), to the silly and offensive Philip Mechem, The Jurisprudence of Despair, 21 Iowa L. Rev. 669 (1936).Google Scholar
113 All of this paragraph and much of the next are derived from R. Stevens, see, supra, note 26, 205–231.Google Scholar
114 Duncan disowns ever having said this. The attribution is nevertheless correct and stealing someone else's metaphor, even a disowned metaphor, is a high crime.Google Scholar
115 Lasswell, Harold & McDougal, Myres, Legal Education and Public Policy: Professional Training in the Public Interest, 52 YALE L. J. 205 (1943)Google Scholar
116 Id., 203.Google Scholar
117 Id., 206.Google Scholar
118 Id., 207.Google Scholar
119 Id., 208.Google Scholar
120 Id., 212.Google Scholar
121 Leach, Barton, Property Law in Two Packages, 1 Legal, J. Ed. 28 (1948)Google Scholar
122 Id., 29.Google Scholar
123 Id., 30.Google Scholar
124 Id., 38.Google Scholar
125 Id., 41.Google Scholar
126 Id., 31.Google Scholar
127 Here there is no great book. The best entré into the mass of writings are two essays: Kenneth Winston, Introduction, in The Principles of Social Order: Selected Essays of Lon L. Fuller (Winston, Kenneth ed. 1981) and Peter Teachout, The Soul of the Fugue: An Essay on Reading Fuller, 70 Minn. L. Rev. 1073 (1986).Google Scholar
128 Hart, Henry & Sacks, Albert, The Legal Process: Basic Problems in the Making and Application of Law (1958)Google Scholar
129 The first problem in the Hart & Sacks material is “the Case of the Spoiled Cantaloupes”.Google Scholar
130 Ackerman, Bruce, Law and the Modern Mind by Jerome Frank, 103 Daedalus 119, 123 and see, supra, note 26.Google Scholar
131 Again I steal from R. Stevens, supra, note 26, at 232-63.Google Scholar
132 Jackson, Donald & Gee, E. Gordon, Bread and Butter: Electives in American Legal Education (1975).Google Scholar
133 Schlegel, John Henry, Notes Toward an Intimate, Opinionated, and Affectionate History of the Conference on Critical Legal Studies, 36 Stan. L. Rev. 391, 411 (1984).Google Scholar
134 See, Laura Kalman, Legal Realism at Yale (1986).Google Scholar
135 Pound, Nathan Roscoe, The Call for a Realist Jurisprudence, 44 Harv. L. Rev. 706 (1931)Google Scholar
136 Carrington, Paul, The Dangers of the Graduate School Model, 36 Legal, J. Ed. 11, 12 (1986)Google Scholar
137 Wiebe, Robert, The Search for Order (1967)Google Scholar
You have
Access