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The American Law Institute and the Triumph of Modernist Jurisprudence

Published online by Cambridge University Press:  28 October 2011

G. Edward White
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Extract

In most studies of the early twentieth-century emergence of a modern conception of law in America, the formation of the American Law Institute in 1923 is not highlighted. One might point to academic literature advocating a “sociological” approach to judicial decision making, or a behavioralist approach to the work of judges, or the reorganization of law school casebooks to include “functional” legal categories or social science materials. One might unpack the work of an early twentieth-century lawyer, or even a judge, and find a jurisprudential perspective that could be labeled modernist. Finally, one might note the appearance of litigation strategies—encapsulated in the term “Brandeis brief”—designed to incorporate into case decisions arguments that legal rules should reflect their social context. But one would not associate the arrival of modernist jurisprudence in America with the early history of an organization of elite lawyers and judges whose stated purpose was to commission “restatements” of black-letter common law rules.

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Articles
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Law and History Review , Volume 15 , Issue 1 , Spring 1997 , pp. 1 - 47
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Copyright © the American Society for Legal History, Inc. 1997

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References

1. See generally White, G. Edward, “From Mechanical Jurisprudence to Sociological Jurisprudence,” in Patterns of American Legal Thought (1978), 100–121.Google Scholar

2. See, e.g., Frank, Jerome, Law and the Modern Mind (1930), 100–17Google Scholar; Corbin, Arthur, “The Law and the Judges,” Yale Review 3(1914): 234–50Google Scholar.

3. See White, G. Edward, Tort Law in America (1980), 84—91Google Scholar; Kalman, Laura, Legal Realism at Yale (1986), 69–97.Google Scholar

4. E.g., Cardozo, Benjamin, The Nature of the Judicial Process (1921)Google Scholar; Brandeis, Louis D., “The Living Law,” Illinois Law Review 10 (Feb. 1916): 461–71Google Scholar.

5. E.g., Muller v. Oregon, 208 U.S. 412 (1908). See Baskerville, Stephen, Of Laws and Limitations (1994), 144–46Google Scholar. See also Parrish, Michael, Felix Frankfurter and His Times: The Reform Years (1982), 165Google Scholar, discussing Frankfurter, 's brief in Adkins v. Children's Hospital, 261 U.S. 525 (1923)Google Scholar.

6. See, e.g., Twining, William, Karl Llewellyn and the Realist Movement (1973), 275–76Google Scholar; Stevens, Robert, Law School: Legal Education in America from the 1850s to the 1980s (1983), 133–35.Google Scholar

7. See Hull, N. E. H., “Restatement and Reform: A New Perspective on the Origins of the American Law Institute,” Law and History Review 8 (1990): 55–96CrossRefGoogle Scholar; Hull, , “Vital Schools of Jurisprudence: Roscoe Pound, Wesley Newcomb Hohfeld, and the Promotion of an Academic Jurisprudential Agenda, 1910–1919,” Journal of Legal Education 45 (1995): 235–81Google Scholar.

8. Langdell, C. C., “Harvard Celebration Speeches,” Law Quarterly Review 3 (1887): 24Google Scholar. This comment tracked positions Langdell had taken as early as 1871; see A Selection of Cases on the Law of Contracts (1871), vii.

9. See Hoeflich, M. H., “Law and Geometry: Legal Science from Leibniz to Langdell,” American Journal of Legal History 30 (April, 1986): 95–121CrossRefGoogle Scholar.

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12. For an early recognition of this tendency, see Hollinger, David, Morris Cohen and the Scientific Ideal (1975), 147–48, 152.Google Scholar A fuller account of the epistemological assumptions of early twentieth-century American social science is Ross, Dorothy, The Origins of American Social Science (1992), 303–90.Google Scholar

13. Langdell, , A Selection of Cases, vii.Google Scholar

14. Ibid., iv.

15. Ibid., vii. Context for disciplinary fragmentation in late nineteenth-century American academic life can be found in Haskell, Thomas, The Emergence of Professional Social Science (1977).Google Scholar

16. Langdell, , A Selection of Cases, vii.Google Scholar

17. Grey, , “Langdell's Orthodoxy,” 8–9, 42–7Google Scholar; Siegel, , “Joel Bishop's Orthodoxy,” 222–25.Google Scholar I have recently suggested that Langdell and many of his Harvard Law School colleagues during the period of his deanship (1870–95) seem to embody a “Brahmin gentry” perspective on late nineteenth-century issues of political economy. See White, G. Edward, “Revisiting James Bradley Thayer,” Northwestern University Law Review 88 (1993): 48–83Google Scholar.

18. Proceedings of the American Law Institute 1 (1923): 68Google Scholar.

19. Ibid., 66. This apparent paradox was a common thread in late nineteenth-century Langdellian commentary: judges were seen as handing down examples of legal principles without being conscious of the principles themselves, which were revealed by “jurisconsults.” See Siegel, “Joel Bishop's Orthodoxy,” 223–24.

20. Proceedings of the American Law Institute 1 (1923): 70Google Scholar.

21. Ibid., 73.

22. Ibid., 74.

23. Ibid., 70.

24. Ibid., 6.

25. Ibid., 70.

26. Ibid., 77.

27. Ibid.

28. Ibid., 78.

29. Ibid.

30. Ibid., 80.

31. Ibid.

32. Ibid., 82.

33. For an example of that alternative reading, see Bingham, Joseph W., “What Is the Law?” Michigan Law Review 11 (1912): 109CrossRefGoogle Scholar. I do not mean to suggest that such a reading occupied “mainstream” status in early twentieth-century jurisprudential discourse. On the contrary, it was regarded as distinctly “beyond the fringe.” See Schlegel, John Henry, “Between the Harvard Founders and the American Legal Realists,” Journal of Legal Education 35 (1985): 311–25Google Scholar.

34. Treatise writing had continued in the late nineteenth and early twentieth centuries, and by the early 1920s such volumes as Beale's, JosephConflict of Laws (1916)Google Scholar, Williston's, SamuelContracts (1920)Google Scholar, and Wigmore's, JohnEvidence (1923) had appeared.Google Scholar

35. See Hull, . “Restatement and Reform,” 79, 83–85.Google Scholar

36. See Davis, John W., Proceedings of the American Law Institute 2 (1924): 113Google Scholar.

37. Proceedings of the American Law Institute 1 (1923): 23Google Scholar.

38. Ibid.

39. See Proceedings of the American Law Institute 2 (1924): 89Google Scholar.

40. Ibid., 23.

41. Ibid., 24.

42. Ibid., 113.

43. For a more detailed discussion of premodernism and modernism as epistemological systems, see White, G. Edward, “The Canonization of Holmes and Brandeis: Epistemology and Judicial Reputations,” New York University Law Review 70 (1995): 103–8Google Scholar.

44. For example, late nineteenth-century jurisprudence struggled to maintain a bright-line distinction between the “public” and “private” spheres of activity. See Grey, , “Langdell's Orthodoxy,” 48Google Scholar; Horwitz, Morton, The Transformation of American Law, 1870–1960 (1992), 10–11, 164–67, 206–7Google Scholar. The public sphere was thought to be amenable to governmental regulation, the private sphere presumptively immune. This followed from the epistemological assumption that in most of life—a vast private domain—inexorable political and economic laws overrode human agency. Only in the “public” sphere, one in which the equally constraining principle of sovereignty (an outgrowth of social status) governed, were humans assumed to control their external world, and then primarily because of their preordained status of power.

45. By the 1950s this assumption was sufficiently orthodox that Henry Hart and Albert Sacks's unpublished treatise, “The Legal Process,” was subtitled “Basic Problems in the Making and Application of Law” (tent, ed., 1958).

46. See LaPiana, , Logic and Experience, 5, 65–77.Google Scholar

47. See Stevens, , Law School, 92–116, 172Google Scholar; Auerbach, Jerome, Unequal Justice: Lawyers and Social Change in Modern America (1976), 40–157.Google Scholar

48. Auerbach, , Unequal Justice, 40–44Google Scholar; Matthews, Jean, Rufus Choate: The Law and Civic Virtue (1980), 24–26.Google Scholar

49. Stevens, , Law School, 74–79.Google Scholar

50. Ibid., 100, 116. See also Auerbach, , Unequal Justice, 113–19.Google Scholar

51. Auerbach, , Unequal Justice, 113.Google Scholar

52. Quoted in Ibid., 115.

53. Quoted in Ibid., 114.

54. Quoted in Ibid., 115.

55. Quoted in Ibid., 115–16.

56. Ibid., 116–17; Stevens, , Law School, 102.Google Scholar

57. Quoted in Auerbach, , Unequal Justice, 112.Google Scholar

58. Quoted in Lagemann, Ellen, The Politics of Knowledge (1989), 80.Google Scholar

59. Proceedings of the American Law Institute 1 (1923): 48Google Scholar.

60. Ibid. See also the discussion in Hull, “Restatement and Reform,” 86.

61. New York Times, 24 February 1923.

62. See White, , “Canonization of Holmes and Brandeis,” 106–8.Google Scholar

63. Compare the discussion of the ALI in Twining, , Karl Llewellyn, 274–76.Google Scholar

64. A number of scholars have made this general point in different ways. Compare Twining, , Karl Llewellyn, 274–76Google Scholar with Schlegel, John Henry, American Legal Realism and Empirical Social Science (1995), 25–57Google Scholar, and Kalman, , Legal Realism at Yale, 10–20.Google Scholar Arthur Corbin's longevity and influence on the next generation of legal scholars make it difficult to identify him with any particular “school” of twentieth-century jurisprudence. Llewellyn's 1931 list of “Realist” scholars included Corbin, (“Some Realism About Realism—Responding to Dean Pound,” Harvard Law Review 44 [1931]: 1222–64Google Scholar). Corbin had been one of Llewellyn's favorite professors at Yale Law School and was supportive of Llewellyn's own academic career (Twining, Karl Llewellyn, 95–96). Moreover, Llewellyn and Frank's “list” of Realists was idiosyncratic and cannot be regarded as definitive. See Horwitz, , Transformation of American Law, 182–85Google Scholar. For the purposes of this article, Corbin's continued belief in the ideal of a “scientific,” uniform legal terminology, coupled with his conviction that legal rules, although continually changing to reflect their social context, were not meaningless abstractions, places him in the group of early twentieth-century jurists who embraced the “sociological turn” in jurisprudence but did not fully embrace a behavioralistic conception of legal science.

65. Quoted in White, , Tort Law In America, 56–57.Google Scholar

66. In addition to the secondary sources cited here, I have relied on some earlier work of my own, notably “From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth-Century America,” Virginia Law Review 58 (1972): 999–1028CrossRefGoogle Scholar, reprinted in Patterns of American Legal Thought, 99–135, and Tort Law in America, 31–83. My present interpretations may be seen as adding another dimension to those offered in the earlier works, or, alternatively, as modifications in the light of work that has appeared since their publication. Since I believe that consistency over a scholarly lifetime is not easily reconcilable with the idea of scholarship as a learning process, I am content with either reading.

67. See, generally, Ross, Origins of American Social Science, and Ross, Dorothy, ed., Modernist Impulses in the Human Sciences 1870–1930 (1995)Google Scholar. In the latter, Ross's introduction, “Modernism Reconsidered,” 1–25, goes beyond the sciences to consider what she calls “efforts to reconstruct knowledge, value, and representation” in the arts and the humanities as well. It is, in my judgment, the most helpful overview of the concepts of modernism and postmodernism that has yet appeared.

68. Ross, , “Modernism Reconsidered,” Modernist Impulses, 8Google Scholar. I share her sense that the causal connection between “modernism,” which she associates with a “recognition of the subjectivity of perception and cognition,” and “modernity” is complex and dialectical.

69. Ross, , Origins of American Social Science, xiii–xv.Google Scholar She also, correctly in my view, associates “scientism” in late ninteenth and early twentieth-century American social science with an effort to turn away from the relevance of history as a source of universal principles or of cyclical theories of cultural change (xii–xiv).

70. The first explicit use of the term came in Pound's essay, “The Need of a Sociological Jurisprudence,” Green Bag 19 (1907): 607–15Google Scholar. The perspective Pound associated with “sociological jurisprudence” had been set forth two years earlier in his “Do We Need a Philosophy of Law?” Columbia Law Review 5 (1905): 339–53Google Scholar.

71. The Nature of the Judicial Process was based on Cardozo's Storrs Lectures. It became one of the academic bestsellers of the next several decades. See White, G. Edward, The American Judicial Tradition, expanded ed. (1988), 258–59.Google Scholar

72. Many of their contemporaries thought Pound's attacks on “mechanical jurisprudence” and Cardozo's open acknowledgment that judges were creative actors conspicuously nontraditionalist. Therefore, the degree to which they retained a methodological allegiance to Langdellian conceptualism has sometimes been underemphasized by current commentators such as Hull, “Vital Schools of Jurisprudence.”

73. See Hull, “Vital Schools of Jurisprudence”; Singer, Joseph William, “The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld,” Wisconsin Law Review (1982): 975–1059.Google Scholar See also the discussion in Horwitz, , Transformation of American Law, 152–56.Google Scholar

74. For the fullest statement of his views, see Fundamental Legal Conceptions As Applied In Judicial Reasoning And Other Legal Essays, ed. Cook, Walter Wheeler (1919)Google Scholar. Hohfeld's most revealing methodological articles were the two entitled “Some Fundamental Legal Conceptions As Applied in Judicial Reasoning,” Yale Law Journal 23 (1913): 16–59 and 26 (1916): 710–70.CrossRefGoogle Scholar

75. Corbin used this phrase in a letter to Eugene Rostow, August 10, 1957, Thomas Swan Papers, Yale University Library. The letter is quoted by Hull, “Vital Schools of Jurisprudence,” 259. Hull seeks to establish an image of Hohfeld as a “Progressive-Pragmatist” in the mold of Pound, Corbin, and Llewellyn. She asserts that the intellectual orientation of Hohfeld and Corbin, and the closeness of their relationship, “suggests that the story of legal realism at Yale begins … in 1913,” when Hohfeld's “Fundamental Legal Conceptions” article first appeared in the Yale Law Journal. In my view Hull's assertion insufficiently captures Hohfeld's place in the history of early twentieth-century American jurisprudence. See the discussion below, 28–30.

76. Hull, “Vital Schools of Jurisprudence,” 259.

77. See Fundamental Legal Conceptions, 5.

78. This phrase appeared in his address to the annual meeting of the Association of American Law Schools. See Hohfeld, Wesley Newcomb, “A Vital School of Jurisprudence and Law,” Handbook of the Association of American Law Schools 14 (1914): 88Google Scholar.

79. The “jurisconsult” characterization was made by Langdell and the “expounders, systematizers, and historians” characterization by Harvard University President Charles W. Eliot, both in addresses describing the orientation of Harvard Law School during Langdell's deanship (1870–95). See [The Harvard Law School Association,] The Centennial History of the Harvard Law School (1918), 26, 31.

80. Hull recognizes, but at the same time overemphasizes, this dimension of Hohfeld's agenda as a law professor, suggesting that “no doubt, had he lived, he would have translated his jurisprudential ideas into a reformist program.” See Hull, “Vital Schools of Jurisprudence,” 270. Hohfeld may have been committed to graduate legal training and research in jurisprudence, but that commitment was not primarily because he was interested in harnessing law to social reform. As Corbin put it, “so far as I ever knew, [Hohfeld's] interests were analytical and logical, rather than sociological” (259). Moreover, I do not believe that the term “reform” clarifies the perspective of the numerous individuals who made contributions to American jurisprudence in the early years of the twentieth century; the term requires additional refinement.

81. See Stevens, Robert, Law School: Legal Education in America (1983), 98.Google Scholar

82. Ibid., 135.

83. Cardozo, Benjamin, The Growth of the Law (1924), 6.Google Scholar

84. Boston University Law Review 13 (1933): 204Google Scholar, 208.

85. Lewis, William Draper, Proceedings of the American Law Institute 7 (1930): 209Google Scholar, quoted in Farnum, “Terminology and the American Law Institute,” 208.

86. Lewis, Proceedings: 207. See Farnum, “Terminology and the American Law Institute,” 209.

87. Bigelow, Harry, Proceedings of the American Law Institute 7 (1930): 207Google Scholar.

88. Farnum, “Terminology and the American Law Institute,” 212, 210.

89. Quoted in Ibid., 213.

90. Ibid., 213.

91. Ibid., 214–15.

92. Ibid., 216.

93. Ibid.

94. Ibid., 217. Italics in original.

95. See Hull, “Vital Schools of Jurisprudence,” 256–63.

96. Ibid., 259.

97. Fundamental Legal Conceptions, 28. Hohfeld's original rendering was in “Some Fundamental Legal Conceptions As Applied in Judicial Reasoning,” Yale Law Journal 23 (1913): 21Google Scholar.

98. Corbin, Arthur, “The Restatement of the Common Law by the American Law Institute,” Iowa Law Review 15 (1930): 19Google Scholar, quoted in Farnum, “Terminology and the American Law Institute,” 217–18.

99. See Clark, Charles, “The Restatement of the Law of Contracts,” Yale Law Review 42 (1933): 649–52CrossRefGoogle Scholar.

100. Llewellyn, Karl, “A Realistic Jurisprudence—The Next Step,” Columbia Law Review 30 (1930): 431CrossRefGoogle Scholar; “Some Realism About Realism.” In the latter article, Llewellyn stated that Frank should have been listed as a joint author and that “the paper could not have been written without his help” (1222).

101. Llewellyn, “Some Realism About Realism,” 1237.

102. Frank, Jerome, Law and the Modern Mind (1930), 147.Google Scholar

103. Pound, Roscoe, “The Call for a Realist Jurisprudence,” Harvard Law Review 44 (1931): 707CrossRefGoogle Scholar.

104. Cardozo, Benjamin, untitled address, Report of the New York State Bar Association 55 (1932): 272Google Scholar. In a later edition of Cardozo's writings, Selected Writings of Benjamin Nathan Cardozo, ed. Margaret Hall (1947), the address is given the title “Jurisprudence.”

Andrew Kaufman argues that Cardozo's purpose in discussing the Realists was to moderate what he saw as some of their nihilistic tendencies, “especially their exaggeration of the indeterminacy of legal principles.” Cardozo hoped to “embrace the ‘neo-realists’ as part of a larger and older realist tradition,” in which he included his own work and that of Pound's. Kaufman, Cardozo (unpublished manuscript, 1995), 782–83.

105. Jerome N. Frank to Benjamin N. Cardozo, September 9, 1932, Jerome Frank Papers, Yale University Library, quoted in Kaufman, , Cardozo, 787–89.Google Scholar Cardozo wrote Frank a short and self-deprecatory reply, which Frank apparently found unresponsive, since he published a version of the letter as “Cardozo and the Upper-Court Myth,” Law and Contemporary Problems 13 (1948): 369CrossRefGoogle Scholar. The letter from Cardozo to Frank, September 16, 1932, is also in the Jerome Frank Papers, Yale University, and is quoted in Kaufman, , Cardozo, 789–90.Google Scholar

106. McDougal, Myers, “Book Review [of Volumes 1 and 2 of the Restatement of Property],” Illinois Law Review 32 (1937): 510, 513Google Scholar.

107. Ibid., 513.

108. McDougal was referring to the Restatements of Contracts, Conflict of Laws, Torts, and Property. For examples of critical reviews, see below, 37–38.

109. Clark, “Restatement of the Law of Contracts,” 653, 655.

110. Green, Leon, “The Torts Restatement,” Illinois Law Review 29 (1935): 584–85Google Scholar, 592.

111. Beale, Joseph, Proceedings of the Association of American Law Schools 14 (1914): 38Google Scholar, quoted in Lorenzen, Ernest G. and Heilman, Raymond J., “The Restatement of the Conflict of Laws,” University of Pennsylvania Law Review 83 (1935): 556Google Scholar.

112. Cook, Walter Wheeler, “The Logical and Legal Bases of the Conflict of Laws,” Yale Law Journal 33 (1924): 459CrossRefGoogle Scholar, quoted in Lorenzen and Heilman, “Restatement of the Conflict of Laws,” 558.

113. Robinson, Edward S., Law and the Lawyers (1935), 36.Google Scholar

114. Ibid.

115. Goodrich, Herbert F., “Institute Bards and Yale Reviewers,” University of Pennsylvania Law Review 84 (1936): 452–53Google Scholar, 454.

116. Llewellyn, , “A Realistic Jurisprudence,” 434, 435.Google Scholar

117. Arnold, Thurman, “Institute Priests and Yale Observers—A Reply to Dean Goodrich,” University of Pennsylvania Law Review 84 (1939): 813Google Scholar.

118. Ibid., 813, 816.

119. Ibid., 818–22.

120. Ibid., 817.

121. Ibid., 823.

122. Ibid., 823–24.

123. In the 1950s the sociologist Erwin Smigel interviewed several lawyers from large New York law firms for his book The Wall Street Lawyer. The premise of Smigel's book was that he, who had no legal training and no previous connections with any of the firms, could explore the world of Wall Street law practice from the detached, objective perspective of the social scientist. Smigel was frustrated at the number of his interviewees who rejected that premise and asserted that someone whose professional life had not been spent within the culture of Wall Street firms could not understand how they operated. In his preface, Smigel deflected this criticism as provincial and self-serving. But he did not question whether his own methodological approach, which involved grouping data furnished by his interviewees into the orthodox categories of 1950s sociology, might have been comparably provincial. Instead Smigel implicitly contrasted his “objective” posture toward the firms he chose to study with the defensive posture of several of his interviewees. See generally Smigel, The Wall Street Lawyer (1958).

124. In this sense perhaps the most interesting aspect of the reframing of the concept of “law as a science” in the 1930s was that the identification of law as one of the human sciences was retained. Law could have been seen as one of the humanities, being sufficiently “complex” and human directed to resist scientific study. It decisively was not.

125. For details on casebooks and scholarly projects, see Kalman, Legal Realism at Yale and White, Tort Law In America. For details on empirical social science research, see Schlegel, American Legal Realism. For details on the connections between Realism and new scholarly fields, such as administrative law, see Horwitz, , The Transformation of American Law, 44, 213–46.Google Scholar

126. See Llewellyn, Karl, The Common Law Tradition (1960), 509–10.Google Scholar

127. I first wrote about Llewellyn and the Realist movement in the early 1970s. Convinced at that time that Realism represented a distinctive, and time-bound, “school” of American jurisprudential thought, I took Llewellyn's comments as deliberately obfuscationist, especially since in his articles, “A Realistic Jurisprudence” and “Some Realism About Realism,” he had identified common features of the Realist movement and sought to distinguish it from other jurisprudential perspectives. My treatment of Llewellyn and the Realists attempted to place them in a historical line of twentieth-century American jurisprudential scholarship that began with sociological jurisprudence and ended with the “process theory” perspective of the 1940s and 1950s (which at that time I called “Reasoned Elaboration”). See White, G. Edward, “From Sociological Jurisprudence to Realism,” and “The Evolution of Reasoned Elaboration,” Virginia law Review 59 (1973): 279–302CrossRefGoogle Scholar, both in Patterns of American Legal Thought.

By the 1980s I had modified this view to some extent, seeing sociological jurisprudence and Realism as stages in a twentieth-century tradition of “reformist” legal thought and attempting to probe the methodological orientation of Realists, which I described as “objectivist” and “empiricist.” See White, , Tort Law in America, 64–75.Google Scholar

Meanwhile John Henry Schlegel began work on a series of Realist scholars from a perspective that deemphasized the place of Realism in a “history of ideas” and emphasized the Realists's preoccupation with the methodology of empirical social science. Schlegel's first articles appeared in 1979 and 1980 and pointed to a reexamination of Realism that has culminated in his recently published American Legal Realism and Empirical Social Science. See Schlegel, , “American Legal Realism and Empirical Social Science: From The Yale Experience,” Buffalo Law Review 28 (1979): 459–586Google Scholar, and “American Legal Realism and Empirical Social Science: The Singular Case of Underhill Moore,” Buffalo Law Review 29 (1980): 195–323Google Scholar.

I confess that when Schlegel's work first appeared I found it idiosyncratic in its nearly undivided attention to the relationship between Realism and early twentieth-century empirical social science. I now feel that I was paying too much attention to the Realists's somewhat amateurish research techniques and not enough to the way they thought of themselves as scholars and law professors. It has taken me some time to develop connections between that professional self-image and patterns in twentieth-century epistemology, but I now believe that Schlegel's insights went to the heart of what the Realist movement was about. (See also note 129 below.) Despite my homage to Schlegel, he will doubtless view this current effort as a misguided attempt to locate Realism in “a history of ideas,” especially ideas as remote and abstract as theories of knowledge. See Schlegel, , American Legal Realism and Empirical Social Science, 4–5.Google Scholar

128. Llewellyn, , The Common Law Tradition, 509–10.Google Scholar

129. Horwitz, The Transformation of American Law, characterizes the Realist movement with a description that emphasizes its “connection to the movement for political reform” and deemphasizes its connection to “a now largely discredited strand of positivist and behavioralistic social science” (172). On the other hand, Schlegel, American Legal Realism and Empirical Social Science, emphasizes the commitment of several Realist scholars to what he calls the professional identity of the law professor as empirical social scientist and suggests that at some point the ideal of value-free empirical research became incompatible with a political agenda of law reform (232–38).

There is no gainsaying the fact that most “Realists,” however one defines members of that movement, had a “progressive” political orientation and, in the universe of early twentieth-century politics, can be seen as law reformers. I think the label “political reform,” however, is not a particularly suggestive one for the Realists' work. The label “empirical social science” is. This is especially true, I believe, if one focuses on the connection between the Realist movement and the Restatement project. Those who founded the ALI, of course, also saw themselves as law reformers.

A passage from American Legal Realism captures, for me, the fruitfulness of the “empiricist” label when applied to those who identified themselves with the Realist movement. It also suggests, for me, the crux of the intergenerational quarrel between those sociological jurists who endorsed the Restatement project and the Realists. Schlegel writes, “Nineteenth-century legal science took the position of the insider. Progressive reformers like Pound… did so as well; they would reform the rules because from the insider's perspective it was important to have better rules. … As far as [progressive reformers] were concerned, Llewellyn and empiricists… were not acting like proper legal academics. Proper legal academics made their observations and offered their criticisms from the internal perspective…” (226).

In the terms of this essay, Langdell, Pound, Cardozo, Corbin, even Hohfeld, and those who participated in the Restatement project were engaged in “insider” legal science, what Arnold called a “science of law.” The Realists were proposing to supplant that legal science with a “science about law” that rejected “reforming the rules” and advocated in their place the derivation of “customs,” or “practices,” gleaned through the techniques of the behavioral sciences. Thus the central feature distinguishing “sociological jurists,” the Restatement participants, and Realists was not their respective commitment to political reform itself but their disagreement about the appropriate “scientific” source of reformist insights.

130. On the origins of Llewellyn's involvement with the Uniform Commercial Code, see Twining, , Karl Llewellyn, 276–82.Google Scholar