What's wrong with Langdell's method, and what to do about it

Vanderbilt Law Review

Volumn 60, Issue 2, 2007, Pages 609-666

  Rubin, Edward ^a  

^a VANDERBILT UNIVERSITY LAW SCHOOL   (United States)

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EID: 35349010039     PISSN: 00422533     EISSN: None     Source Type: Journal    
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References (346)

1. See DANIEL FARBER & SUZANNA SHERRY, BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW 52-59 (1997) (noting that the representation of Jews in the American legal academy is quite extensive relative to their proportion of the general population, so much so that any shift away from current means of selection in the direction of proportional representation would be highly disadvantageous to them).
2. See Russell Weaver, Langdell's Legacy: Living with the Case Method, 36 VILL. L. REV. 517, 547-61 (1991) (canvassing justifications for the case method, almost all written prior to World War II). Weaver himself is critical of the case method,
3. Id. at 561-96.
4. Charles Eliot, Langdell and the Law School, 33 HARV. L. REV. 518, 523-24 (1920);
5. Mark Spiegel, Theory and Practice in Legal Education: An Essay on Clinical Education, 34 UCLA L. REV. 577, 582-83 (1987);
6. Weaver, supra note 2, at 549.
7. In August of 1914, with Europe sliding rapidly into war, Sir Edward Grey, "watching from the windows of the Foreign Office the lights springing out in the dusk, said to a friend, 'The lamps are going out all over Europe; we shall not see them lit again in our lifetime.' " JOHN BUCHAN, THE PEOPLE'S KING, GEORGE V: A NARRATIVE OF TWENTY-FIVE YEARS 98 (1935).
8. See generally ROBERT MUSIL, THE MAN WITHOUT QUALITIES (Sophie Wilkins trans., 1995) (novel about the onset of the modern era, set in 1913-14).
9. LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 466-72 (3d ed. 2005) (more sophisticated);
10. WILLIAM LAPIANA, LOGIC AND EXPERIENCE: THE ORIGIN OF MODERN LEGAL EDUCATION 55-78 (1994) (more concerned with the realities of practice);
11. Bruce Kimball, "Warn Students That I Entertain Heretical Opinions, Which They Are Not to Take as Law": The Inception of Case Method Teaching in the Classrooms of the Early CC. Langdell, 1870-1883, 17 LAW & HIST. REV. 57, 66-77 (1999) (more flexible);
12. Anthony Sebok, Misunderstanding Positivism, 93 MICH. L. REV. 2054, 2078-87 (1995) (more cognizant of the evolving character of law);
13. Mareia Speziale, Langdell's Concept of Law as Science: The Beginning of Anti-Formalism in American Legal Theory, 5 VT. L. REV. 1, 3 (1980) (more sophisticated, more cognizant of the evolving character of law).
14. See Anthony Chase, The Birth of the Modern Law School, 23 AM. J. LEGAL HIST. 329, 332-39 (1979) (arguing that Eliot was primarily responsible for the development of the Harvard Law School approach). This would not be surprising; Langdell was a New York lawyer at the time of his appointment, but Eliot was one of the leading educators of the entire era.
15. WILLIAM C. CHASE, THE AMERICAN LAW SCHOOL AND THE RISE OF ADMINISTRATIVE GOVERNMENT 26-27 (1982);
16. ROBERT STEVENS, LAW SCHOOL: LEGAL EDUCATION IN AMERICA FROM THE 1850s TO THE 1980S 35-50 (1983).
17. CHASE, supra note 7, at 41-76;
18. FRIEDMAN, supra note 5, at 470-71;
19. LAPIANA, supra note 5, at 79-109;
20. STEVENS, supra note 7, at 73-91;
21. Weaver, supra note 2, at 541-43.
22. See, e.g., JEROME FRANK, LAW AND THE MODERN MIND 100-07 (Anchor Books 1970) (1930) (attacking formalism and Langdellian curriculum as pseudo-science);
23. Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 821-34 (1935) (attacking formalism and Langdellian curriculum as arid conceptualism);
24. William O. Douglas, A Functional Approach to the Law of Business Associations, 23 ILL. L. REV. 673, 674-76 (1928-29) (same, specifically in business law). On the legal realistic movement generally, and the reasons for its ultimate demise,
25. see generally JOHN HENRY SCHLEGEL, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE (1995); WILLIAM TWINING, KARL LLEWELLYN AND THE REALIST MOVEMENT (1973); Grant Gilmore, Legal Realism: Its Cause and Cure, 70 YALE L.J. 1037 (1961).
26. See PETER L. BERGER, THE HERETICAL IMPERATIVE: CONTEMPORARY POSSIBILITIES OF RELIGIOUS AFFIRMATION 12-26 (1979) (contrasting modernity with traditional pre-modern society);
27. FRANCIS FUKUYAMA, THE END OF HISTORY AND THE LAST MAN 323-27 (1992) (describing the decline in traditional community brought on by the rise of liberal capitalism);
28. KARL R. POPPER, THE OPEN SOCIETY AND ITS ENEMIES: THE SPELL OF PLATO 188-89 (5th ed. rev. 1966) (1945) (construing the rise of philosophy as a process of questioning previous theories and traditions). See generally 1 JURGEN HABERMAS, THE THEORY OF COMMUNICATIVE ACTION: REASON AND THE RATIONALIZATION OF SOCIETY (Thomas McCarthy trans., 1984) (viewing the modern world view as the rationalization of traditional modes of thought and social practice);
29. Anthony Giddens, Living in a Post-Traditional Society, in ULRICH BECK, ANTHONY GIDDENS & SCOTT LASH, REFLEXIVE MODERNIZATION: POLITICS, TRADITION AND AESTHETICS IN THE MODERN SOCIAL ORDER 56 (1994) (describing the advent of a global post-traditional world at the end of the twentieth century). This so-called detraditionalization has been questioned by some observers.
30. See HANS-GEORG GADAMER, TRUTH AND METHOD 277-307 (Joel Weinsheimer & Donald G. Marshall trans., 2d rev. ed. 1989) (1960) (arguing that reason can coexist with authority and tradition).
31. See generally Paul Heelas, On Things Not Being Worse, and the Ethic of Humanity, in DETRADITIONALIZATION 200 (Paul Heelas, Scott Lash & Paul Morris eds., 1996) (claiming that the development of an "ethic of humanity" has compensated for the reduced influence of tradition in modern society).
32. Many traditions are not particularly old. See generally THE INVENTION OF TRADITION (Eric Hobsbawm & Terrence Ranger eds. 1992) (collection of essays examining the appearance and establishment of traditions, particularly those practices popularly regarded as "traditions" which have a brief history or were consciously created).
33. See Symposium, The Next Generation of Law School Rankings, 81 IND. L.J. 1 (2006);
34. David C. Yamada, Same Old, Same Old: Law School Rankings and the Affirmation of Hierarchy, 31 SUFFOLK U. L. REV. 249, 251 (1997).
35. M.I. FINLEY, THE WORLD OF ODYSSEUS 113-22 (2d. rev. ed. 1979).
36. ALASDAIR MACINTYRE, AFTER VIRTUE 121-45 (2d ed. 1984).
37. JULIAN JAYNES, THE ORIGIN OF CONSCIOUSNESS IN THE BREAKDOWN OF THE BICAMERAL MIND 69-83, 255-92 (1976).
38. CHASE, supra note 7, at 32.
39. Id. at 47-59;
40. STEVENS, supra note 7, at 39-40.
41. Interstate Commerce Act, ch. 104, 24 Stat. 379 (1887) (codified as amended in scattered sections of at 49 U.S.C.).
42. See FRIEDMAN, supra note 5, at 329-40;
43. THOMAS K. MCCRAW, PROPHETS OF REGULATION: CHARLES FRANCIS ADAMS, LOUIS D. BRANDEIS, JAMES M. LANDIS, ALFRED E. KAHN 60-65 (1984);
44. STEPHEN SKOWRONEK, BUILDING A NEW AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES, 1877-1920, 121-60 (1982);
45. Robert L. Rabin, Federal Regulation in Historical Perspective, 38 STAN. L. REV. 1189, 1197-1208 (1986).
46. In 1897, the Supreme Court eviscerated one section of the Act in ICC v. Alabama Midland Ry. Co., 168 U.S. 144 (1897). But in the first decade of the twentieth century, Congress enacted no fewer than three separate laws (with more to follow subsequently) that expanded the Interstate Commerce Commission's authority - the Elkins Act of 1903, ch. 708, 32 Stat. 847 (repealed), the Hepburn Act of 1906, ch. 3591, 34 Stat. 584 (repealed), and the Mann-Elkins Act of 1910, ch. 309, 36 Stat. 539 (repealed). MCCRAW, supra note 19, at 62-63. This is not to suggest that all this regulation was effective in disciplining the railroads. It may have worked to their advantage.
47. See generally GABRIEL KOLKO, RAILROADS AND REGULATION 1877-1916 (1965) (arguing that, since the railroads did not have control over the economy, they benefited from the protection of the federal government that came with regulation). But whatever their effect, statutes and their implementing regulations had definitively displaced common law in the railroad industry by 1914.
48. Federal Reserve Act, ch. 6, 38 Stat. 251 (1913) (codified as amended in scattered sections of 12 U.S.C. (2006)); Sherman Antitrust Act, ch. 647, 26 Stat. 209 (1890) (codified as amended at 15 U.S.C. §§1-7 (2006)); Federal Trade Commission Act, ch. 311, 38 Stat. 717 (1914) (codified as amended at 15 U.S.C. §§41-58 (2006)). For a general discussion, see generally RICHARD HOFSTADTER, THE AGE OF REFORM: FROM BRYAN TO F.D.R. (1955) (examining the primary American reform movements occurring from the 1890s until the end of the New Deal).
49. For discussions of the Progressive Movement in various policy areas, see SAMUEL HABER, EFFICIENCY AND UPLIFT: SCIENTIFIC MANAGEMENT IN THE PROGRESSIVE ERA, 1890-1920 (1964) (scientific management);
50. SAMUEL P. HAYS, CONSERVATION AND THE GOSPEL OF EFFICIENCY: THE PROGRESSIVE CONSERVATION MOVEMENT,1890-1920 (1959) (natural resource policy);
51. DAVID J. ROTHMAN, CONSCIENCE AND CONVENIENCE: THE ASYLUM AND ITS ALTERNATIVES IN PROGRESSIVE AMERICA (rev. ed. 2002) (1980) (criminal justice, juvenile justice and mental health).
52. See, e.g., Adkins v. Children's Hosp., 261 U.S. 525 (1923) (invalidating minimum wage law for women); Lochner v. New York, 198 U.S. 45 (1905) (invalidating maximum hours law for bakers). Even during the heyday of the substantive due process era, however, much Progressive legislation survived.
53. See, e.g., Bunting v. Oregon, 243 U.S. 426 (1917) (upholding maximum hours laws for manufacturing); Muller v. Oregon, 208 U.S. 412 (1908) (upholding maximum hours law for women). For general discussions of the Court's rationale,
54. see HOWARD GLLLMAN, THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE (1993);
55. ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 100-08 (4TH ED. 2005) (1960);
56. ARTHUR S. MILLER, THE SUPREME COURT AND AMERICAN CAPITALISM 18-71 (1968).
57. In fact, this account may be overly generous to Langdell. As Jerry Mashaw points out, administration was a feature of American government from its inception. See generally. Jerry Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787-1801, 115 YALE L.J. 1256 (2006) (challenging the conventional vision that federal administrative law begins in 1887 with the establishment of the Interstate Commerce Commission).
58. See FRIEDMAN, supra note 5, at 329-49 (discussing the rise of administrative law and its regulation of business). In its early years, Congress established the Departments of War, Foreign Affairs and Treasury, and struggled to define the President's removal power for the officers of those departments; it established the Post Office as an operational executive agency, and the Patent Office as an essentially independent one. Id. at 1276-77. During the course of the nineteenth century, state administrative activity became sufficiently prevalent to receive generalized treatment from a national law school in the same manner as the common law. CHASE, supra note 7, at 47-52. The Progressive Era legislation thus represents an increase in the level and salience of the administrative state, rather than a complete break with the past.
59. See REINHARD BENDIX, NATION-BUILDING AND CITIZENSHIP: STUDIES OF OUR CHANGING SOCIAL ORDER 129-39 (2d ed. 1977) (comparing aspects of the modern administrative state with the patrimonial structure of medieval Western Europe);
60. MAX WEBER, ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETIVE SOCIOLOGY 212-99, 956-1002 (Guenther Roth & Claus Wittich eds., Ephraim Fischoff et al. trans., 1978).
61. See generally HENRY JACOBY, THE BUREAUCRATIZATION OF THE WORLD (Eveline L. Kanes trans., 1976) (examining the development and growth of government bureaucracy throughout the history of Western civilization);
62. WOLFGANG J. MOMMSEN, THE AGE OF BUREAUCRACY: PERSPECTIVES ON THE POLITICAL SOCIOLOGY OF MAX WEBER (1974) (discussing the central issues of Max Weber's political and sociological works, particularly his concern with the future of liberal societies in the face of rapidly expanding bureaucracies).
63. I'm happy to advance such assertions, however. See MALCOLM M. FEELEY & EDWARD L. RUBIN, JUDICIAL POLICY MAKING AND THE MODERN STATE: HOW THE COURTS REFORMED AMERICA'S PRISONS 149-203 (1998);
64. Edward L. Rubin & Malcolm M. Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903 (1994).
65. Chevron, Inc. v. Nat'l Res. Def. Council, 467 U.S. 837 (1984).
66. See 1 HABERMAS, supra note 10, at 243-71;
67. WEBER, supra note 25, at 217-26, 839-76;
68. see also NLKLAS LUHMANN, A SOCIOLOGICAL THEORY OF LAW (Elizabeth King-Utz & Martin Albrow trans., 1985);
69. Hugh Baxter, Autopoiesis and the "Relative Autonomy" of Law, 19 CARDOZO L. REV. 1987 (1998).
70. MELVIN A. EISENBERG, THE NATURE OF THE COMMON LAW 50-96 (1988);
71. MARTIN SHAPIRO, COURTS: A COMPARATIVE AND POLITICAL ANALYSIS 1-64 (1981);
72. CASS R. SUNSTEIN, LEGAL REASONING AND POLITICAL CONFLICT 62-100 (1996).
73. See generally KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS (1960);
74. Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353 (1978).
75. STEVENS, supra note 7, at 51-56;
76. Weaver, supra note 2, at 532-33;
77. see also LAPIANA, supra note 5, at 97-99 (discussing competing views on the transition to the case method at Columbia Law School);
78. Kimball, supra note 5, at 71-77 (deriving Langdell's method through examining his handwritten teaching notes).
79. See H.L.A. HART, THE CONCEPT OF LAW 61-66 (2d ed. 1994) (1961) (act of legislation is authoritative; statutes persist if, but only if, subsequent legislation does not repeal them).
80. JOHN FRIEDMANN, PLANNING IN THE PUBLIC DOMAIN: FROM KNOWLEDGE TO ACTION 144-56 (1987) (tracing the history of policy analysis);
81. CARL V. PATTON & DAVID S. SAWICKI, BASIC METHODS OF POLICY ANALYSIS AND PLANNING 52-65 (2d ed. 1993) (identifying the steps of the policy analysis process);
82. EDITH STOKEY & RICHARD ZECKHAUSER, A PRIMER FOR POLICY ANALYSIS 5-7 (1978) (establishing a framework for policy analysis).
83. See generally STUART S. NAGEL, POLICY EVALUATION: MAKING OPTIMUM DECISIONS (1982).
84. FRIEDMAN, supra note 5, at 483-95;
85. MARC GALANTER & THOMAS PALAY, TOURNAMENT OF LAWYERS: THE TRANSFORMATION OF THE BLG LAW FIRM (1991); ROBERT SWAINE, THE CRAVATH FIRM AND ITS PREDECESSORS, 1819-1947 (1948).
86. See generally CHARLES ALAN WRIGHT, HANDBOOK OF THE LAW OF FEDERAL COURTS (6th ed. 2002).
87. This approach is sometimes referred to as Kadi-justice. WEBER, supra note 25, at 976-78.
88. RONALD DWORKIN, LAW'S EMPIRE (1986);
89. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1977);
90. JOHN ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980);
91. Owen Fiss, Objectivity and Interpretation, 34 STAN. L. REV. 739 (1982);
92. Frederick Schauer, Easy Cases, 58 S. CAL. L. REV. 399 (1985);
93. Frederick Schauer, Giving Reasons, 47 STAN. L. REV. 633 (1995).
94. ST. THOMAS AQUINAS, SUMMA THEOLOGICA Pt. I, Q. 90, Art. 4, at 995 (Fathers of the English Dominican Province trans., Christian Classics 1981);
95. see OTTO GIERKE, POLITICAL THEORIES OF THE MIDDLE AGE 75-76 (Frederic Maitland trans., Beacon Press 1958) (1900).
96. AQUINAS, supra note 37, at Pt. I, Q. 91, Art. 3, at 997-98. Of course, although they cannot be derived from natural law alone, they must not conflict with natural law or they are not laws at all. Id. at Pt. I, Q. 95, Art. 2, at 1014.
97. Id. at Pt. I, Q. 91, Art. 3, at 997-98, Pt. I, Q. 95, Art. 2, at 1014.
98. Id. at Pt. I, Q. 97, Art. 3, at 1023.
99. I HABERMAS, supra note 10, at 243-71;
100. J.B. SCHNEEWIND, THE INVENTION OF AUTONOMY: A HISTORY OF MODERN MORAL PHILOSOPHY 141-66 (1998).
101. J.G.A. POCOCK, THE ANCIENT CONSTITUTION AND THE FEUDAL LAW: A STUDY OF ENGLISH HISTORICAL THOUGHT IN THE SEVENTEENTH CENTURY 30-41 (1987). This view is advanced not only for the common law, but for law in general,
102. see EDWARD RUBIN, BEYOND CAMELOT: RETHINKING POLITICS AND LAW FOR THE MODERN STATE 197-203 (2005).
103. POCOCK, supra note 42, at 32.
104. See William Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1979: The Example of Marine Insurance, 97 HARV. L. REV. 1513, 1516-27 (1984);
105. Stewart Jay, The Origins of Federal Common Law, 133 U. PA. L. REV. 1003 (1985).
106. This is not dramatically different from St. Thomas' view, since he also believed in the rationality of the universe and its accessibility to human reason. The biggest difference is that he also believed that principles of natural law, that is, trans-cultural rules for human conduct, could be discerned directly, whereas later legal theorists, Blackstone, for example, thought that rationality-driven principles were entirely embedded the common law of a particular culture, and could only be discerned through the legal products of that culture. This, and not a belief in human rationality, continues to distinguish those who believe in natural law, e.g., JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS (1988);
107. ROBERT GEORGE, IN DEFENSE OF NATURAL LAW (1999);
108. JACQUES MARITAIN, NATURAL LAW: REFLECTIONS ON THEORY AND PRACTICE (William Sweet ed., 2001);
109. LLOYD WEINREB, NATURAL LAW AND JUSTICE (1987), from those who reject it.
110. FRANK BARLOW, THE NORMAN CONQUEST AND BEYOND (1983);
111. DAVID DOUGLAS, WILLIAM THE CONQUERER: THE NORMAN IMPACT UPON ENGLAND (1964);
112. FRANK STENTON, WILLIAM THE CONQUEROR AND THE RULE OF THE NORMANS (Barnes & Noble 1967) (1908).
113. POCOCK, supra note 42, at 41-55.
114. See Dr. Bonham's Case, (1610) 8 Rep. 113b; 7 James I (Hilary Term) (C.P.), reprinted in i THE SELECTED WRITINGS OF SIR EDWARD COKE 264 (Steve Sheppard ed., 2003) (Parliamentary restriction on medical licenses contrary to common law and is therefore void);
115. see also Jentleman's Case, (1583) 6 Rep. 11a; 25 Eliz. I (Easter Term),
116. reprinted in SHEPPARD, supra, at 157 (King cannot abolish common law courts and cannot control decisions of judges he has appointed); Penal Statutes, 7 Rep. 36b, 2 James I (Hilary Term) (1605),
117. reprinted in SHEPPARD, supra, at 241(Queen cannot release person from burdens of penal statute contrary to common law); The Case of the Tailors of Habits & c. of Ipswich, (1614) 11 Rep. 53a, 12 James I (Michaelmas Term),
118. reprinted in SHEPPARD, supra, at 390 (royal charter prohibiting tailor from practicing his trade conflicts with common law and is therefore void). Coke wrote a book about William's succession whose theme, according to the custom of the day, is summarized in its title: A seasonable treatise wherein is proved that King William (commonly call'd the Conqueror) did not get the imperial crown of England by the sword, but by the election and consent of the people: to whom he swore to observe the original contract between king and people (1689). In other words, Coke not only argued that the monarchy was discontinuous, but that William owed his very ability to rule on his explicit agreement to preserve the common law.
119. WILLIAM NELSON, MARBURY V. MADISON: THE ORIGINS AND LEGACY OF JUDICIAL REVIEW (2000);
120. SHEPPARD, supra note 48, at xxix-xxxi;
121. Allen Boyer, "Understanding, Authority, and Will": Sir Edward Coke and the Elizabethan Origins of Judicial Review, 39 B.C. L. REV. 43 (1997);
122. Louis Jaffe & Edith Henderson, Judicial Review and the Rule of Law: Historical Origins, 72 UW Q. REV. 345 (1956).
123. See, e.g., CHARLES BEARD & MARY BEARD, NEW BASIC HISTORY OF THE UNITED STATES 299-302 (1960);
124. ALFRED KELLY, WINFRED HARBISON & HERMAN BELZ, THE AMERICAN CONSTITUTION: ITS ORIGINS AND DEVELOPMENT (7th ed. 1991);
125. MILLER, supra note 23.
126. GILLMAN, supra note 23; Charles McCurdy, The Roots of Liberty of Contract Reconsidered: Major Premises in the Law of Employment, 1867-1937, 1984 SUP. CT. HIST. SOC'Y 20;
127. William Nelson, The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America, 87 HARV. L. REV. 513 (1974).
128. FREDERICK POLLACK & FREDERICK MAITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD I (2nd ed. 1968).
129. See MARC BLOCH, FEUDAL SOCIETY 109-16 (L. A. Manyon trans., Routledge & K. Paul 1961) (1939);
130. F. L. GANSHOF, FEUDALISM 158-60 (Philip Grierson trans, 3rd ed., 1964);
131. FRANCES GIES & JOSEPH GIES, LIFE IN A MEDIEVAL VILLAGE 172-94 (1990);
132. POLLOCK & MAITLAND, supra note 52, at 13-15 ("In a famous, if exaggerated sentence, Bishop Agobard of Lyons has said that often five men would be walking or sitting together and each of them would own a different law.");
133. W.L. WARREN, HENRY II 317-20 (1977).
134. HAROLD BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADITION 440-45 (1983);
135. POLLOCK & MAITLAND, supra note 52, at 136-38.
136. BERMAN, supra note 54, at 445-57; POLLOCK & MAITLAND, supra note 52, at 136-73; WARREN, supra note 53, at 324-61.
137. POLLOCK & MAITLAND, supra note 52, at 136;
138. R.C. VAN CAENEGEM, THE BIRTH OF THE ENGLISH COMMON LAW 40-44 (2nd ed. 1988); WARREN, supra note 53, at 339-46, 360-61.
139. POLLOCK & MAITLAND, supra note 52, at 138.
140. BERMAN, supra note 54, at 458;
141. POLLOCK & MAITLAND, supra note 52, at 153-61
142. These developments were summarized at the time, probably between 1187 and 1189, in RANULF DE GLANVILLE, THE TREATISE ON THE LAWS AND CUSTOMS OF THE REALM OF ENGLAND (G.D.G. Hall ed., 1965). Whether Glanville, the chief justiciar under Henry II, actually wrote "Glanville" is an open question; in all likelihood, he did not.
143. See BERMAN, supra note 54, at 457-59;
144. POLLOCK & MAITLAND, supra note 52, at 162-67;
145. WARREN, supra note 53, at 298 n.1, 330. Berman thinks it was Hubert Walter, Glanville's nephew and Archbishop of Canterbury under Richard I. For present purposes, the important point is that Henry's contemporaries perceived his reforms as sufficiently significant and comprehensive to have elicited a major restatement of English law.
146. See HANS KELSEN, A PURE THEORY OF LAW 193-278 (Max Knight trans., Univ. of Cal. Press 1967) (1934).
147. Act of Apr. 9, 1866, ch. 31, 14 stat. 27(codified as amended in scattered sections of 42 U.S.C).
148. Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered sections of 42 U.S.C).
149. Pub. L. No. 89-110, 79 Stat. 437 (codified as amended in scattered sections of 42 U.S.C).
150. West Coast Hotel v. Parrish, 300 U.S. 379 (1937) (holding a state minimum wage law for women constitutional and overruling Adkins v. Children's Hosp., 261 U.S. 525 (1923) and Morehead v. Tipaldo, 298 U.S. 587 (1936)).
151. United States v. Carolene Prods., 304 U.S. 144, 153 n.4 (1938). The famous Footnote 4 articulates this theory.
152. S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting).
153. Erie R.R. v. Tompkins, 304 U.S. 64, 78-80 (1938).
154. See Stewart Jay, Origins of Federal Common Law (pt. 2), 133 U. PA. L. REV. 1231 (1985) (tracing the historical roots of the common law controversy);
155. Louise Weinberg, Federal Common Law, 83 Nw. U. L. REV. 805, 805-09 (1989) (discussing the Supreme Court's jurisprudence on federal versus state common law).
156. See LAPIANA, supra note 5, at 74-78 (noting Langdell's distinction between law as it is, which is the concern of lawyers, and law as it should be, which is the purview of legislators);
157. Sebok, supra note 5, at 2078-87.
158. ANTONY BLACK, POLITICAL THOUGHT IN EUROPE 1250-1450, at 148-56 (1992);
159. BLOCH, supra note 53, at 109-20;
160. JOSEPH CANNING, A HISTORY OF MEDIEVAL POLITICAL THOUGHT 3001450, at 21-25 (1996);
161. Kenneth Pennington, Law, Legislative Authority, and Theories of Government, 1150-1300, in THE CAMBRIDGE HISTORY OF MEDIEVAL POLITICAL THOUGHT C. 350C. 1450, at 424 (J.H. Burns, ed., 1988).
162. While this may seem odd, we have not fully liberated ourselves from the medieval view even today, Perhaps the leading jurisprudential work of the post-War era, Hart's Concept of Law, defines law as a set of rules for the governance of human conduct.
163. HART, supra note 31, at 38-41.
164. This is modern enough to include statutes, but Hart is after all a positivist, and he is willing to relinquish the idea of law as reason to that limited extent. Id. Note, however, that Hart's definition excludes such basic statutes of an administrative state as an appropriations bill, the creation of an institution such as a national park or a military base, and a government subsidy to a specific industry or corporation. Id. For Hart, as for Aquinas or Ockham, these statutes are simply not law. Ronald Dworkin, writing after Hart, is even more restrictive. Law, he says, is what a judge decides.
165. DWORKIN, supra note 36, at 1. This enables him to realign the law with reason, reverse Hart's partial modernity, and return to the medieval point of view. About midway through the book, he realizes that he has forgotten about statutes, and comes up with the Procrustean idea that statutes cannot count as law unless they display the coherence of judicial doctrine.
166. Id. at 176-84;
167. see also EDWARD RUBIN, BEYOND CAMELOT: RETHINKING POLITICS AND LAW FOR THE MODERN STATE 197-203 (2005).
168. See Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955);
169. United States v. Carolene Prods., 304 U.S. 144 (1938).
170. These cases, ironically, established the "rational basis" test, perhaps a final act of obeisance to the notion that law must be ruled by reason. Here, however, "rational" does not refer to a coherent system based on general principles, but whether, as the Court said in Carolene Products, "any state of facts either known or which could be reasonably assumed, affords support" for the statute. Id. at 154. As is widely recognized, this means that there is essentially no review of legislation absent some additional factor such as one of those described in Footnote Four. Id. at 152.
171. LAPIANA, supra note 5, at 7-28;
172. STEVENS, supra note 7, at 35-64.
173. CHASE, supra note 7, at 27-31; LAPIANA, supra note 5, at 55-78;
174. STEVENS, supra note 7, at 52-59;
175. Thomas C. Grey, Langdell's Orthodoxy, 45 U. PITT. L. REV. 1, 13-39 (1983);
176. Howard Schweber, The 'Science' of Legal Science: The Model of Natural Sciences in Nineteenth Century American Legal Education, 17 LAW & HIST. REV. 421, 455-464 (1999);
177. Speziale, supra note 5; Weaver, supra note 2, at 527-31.
178. Grey uses the term "conceptual order" for this feature, and defines it as the idea that law's "substantive bottom-level rules can be derived from a small number of relatively abstract principles and concepts, which themselves form a coherent system." Grey, supra note 74, at 8.
179. CHRISTOPHER LANGDELL, CASES ON CONTRACTS viii-ix (2d ed. 1879).
180. Sebok, supra note 5, at 2083-87.
181. Christopher Langdell, Harvard Celebration Speeches, 3 LAW Q. REV. 123, 124 (1887). As Grey points out, this did not prevent Langdell from criticizing judicial decisions; once the general principle was discerned, a particular decision could be treated as an inaccurate application of that principle to the facts of the case.
182. Grey, supra note 74, at 20.
183. It was more difficult, however, for Langdell to reconcile such a critique with the principle of stare decisis that, after all, lay at the center of the common law method. Id. at 24-27.
184. See Speziale, supra note 5, at 2-4.
185. EDWARD LURIE, LOUIS AGASSIZ: A LIFE IN SCIENCE 351-90 (1988).
186. LOUIS MENAND, THE METAPHYSICAL CLUB: A STORY OF IDEAS IN AMERICA 97-116 (2002);
187. see also Schweber, supra note 74, at 436 ("Agassiz may have been the greatest institution builder, publicist, and fundraiser for science this nation has ever known.").
188. MENAND, supra note 81, at 100.
189. Id. at 126-28; Schweber, supra note 74, at 446. This itself may be little more than a restatement of Aristotle's theory of biology, for Aristotle had taken Plato's unchanging, suprasensible forms out of the heavens and embedded them in the material world.
190. LAPIANA, supra note 5, at 70-78.
191. MENAND, supra note 81, at 128.
192. Schweber, supra note 74, at 459 (Langdell "retained the constrained inductivism of an earlier period"). Schweber points out that this approach to science regarded it as part of a unified system of knowledge that would confirm the truth of God's creation, as presented in the Bible. Id. at 447.
193. See SEMIR ZEKI & OLIVER GOODENOUGH, LAW AND THE BRAIN (2006) (applying the new science of neurobiology to the law);
194. Owen D. Jones & Timothy H. Goldsmith, Law and Behavioral Biology, 105 COLUM. L. REV. 405 (2005) (arguing that legal thinkers should seek a greater understanding of human behavior);
195. Owen D. Jones, Sex, Culture and the Biology of Rape: Toward Explanation and Prevention, 87 CAL. L. REV. 827 (1999) (examining scientific perspectives of sexual aggression and how they can impact the legal model of rape).
196. See, e.g., PAUL FEYERABEND, AGAINST METHOD: OUTLINE OF AN ANARCHISTIC THEORY OF KNOWLEDGE (1978);
197. THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (2d ed. 1970).
198. PAUL BUCK, SOCIAL SCIENCES AT HARVARD, 1860-1920 24-25 (1965);
199. Byrd L. Jones, A Quest for National Leadership: Institutionalization of Economics at Harvard, in BREAKING THE ACADEMIC MOULD: ECONOMISTS AND AMERICAN HIGHER LEARNING IN THE NINETEENTH CENTURY, 95, 96-100 (William J. Barber, ed., 1988).
200. Jones, supra note 87, at 98 (quoting FRANCIS BOWEN, AMERICAN POLITICAL ECONOMY 18 (1870)).
201. BUCK, supra note 89, at 25-32.
202. Charles Dunbar, Economic Science in America, 1776-1876, 122 N. AM. REV. 124, 124 (1876).
203. MICHAEL O'CONNOR, THE ORIGINS OF ACADEMIC ECONOMICS IN THE UNITED STATES (1944).
204. Spencer toured the United States in 1882, and "was greeted everywhere with lavish hospitality and accorded celebrity status." DAVID WILTSHIRE, THE SOCIAL AND POLITICAL THOUGHT OF HERBERT SPENCER 92 (1978).
205. TALCOTT PARSONS, THE STRUCTURE OF SOCIAL ACTION (vol. 1) 3 (1968) (quoting CRANE BRINTON, ENGLISH POLITICAL THOUGHT IN THE NINETEENTH CENTURY 226-27 (1962)).
206. While Spencer's evolutionary theory of society can be regarded as a positive, rather than normative, approach-something he seems to have learned from Comte-his empiricism was of a very general nature, and his concept of evolution owed more to Lamarck than to Darwin. J.D.Y. PEEL, HERBERT SPENCER, THE EVOLUTION OF A SOCIOLOGIST 141-46 (1971);
207. WILTSHIRE, supra note 94, at 192-216. Spencer enthusiastically embraced Darwin's survival of the fittest, but his theory was formulated before well before The Origin of Species was published, and Spencer never abandoned the notion that acquired characteristics could be inherited. Id. In any case, the normative implications of his work, specifically his evangelical faith in laissez-faire governance, seem to have been responsible for much of his influence.
208. LESTER WARD, DYNAMIC SOCIOLOGY: OR, APPLIED SOCIAL SCIENCE, AS BASED UPON STATICAL SOCIOLOGY AND THE LESS COMPLEX SCIENCES (Greenwood Press 1968) (1883).
209. WILLIAM GRAHAM SUMNER, FOLKWAYS: A STUDY OF THE SOCIOLOGICAL IMPORTANCE OF USAGES, MANNERS, CUSTOMS, MORES AND MORALS (Ginn & Company1940) (1907);
210. WILLIAM GRAHAM SUMNER, ALBERT KELLER, & MAURICE DAVIE, THE SCIENCE OF SOCIETY (1927) (edited version of Sumner's lecture notes). Sumner was an influential teacher at Yale during the 1880s and 90s, although the publication of his work came somewhat later.
211. FRANKLIN GIDDINGS, THE PRINCIPLES OF SOCIOLOGY: AN ANALYSIS OF THE PHENOMENA OF ASSOCIATION AND OF SOCIAL ORGANIZATION (The Macmillan Co. 1914) (1896). Giddings's first textbook came two years later,
212. see FRANKLIN GIDDINGS, THE ELEMENTS OF SOCIOLOGY: A TEXTBOOK FOR COLLEGES AND SCHOOLS (The Macmillan Co. 1908) (1898).
213. His best-known and most comprehensive works were not produced until the 1920s, however. See FRANKLIN GIDDINGS, STUDIES IN THE THEORY OF HUMAN SOCIETY (1922);
214. FRANKLIN GLDDINGS, THE SCIENTIFIC STUDY OF HUMAN SOCIETY (1924).
215. BUCK, supra note 89, at 19.
216. See ARISTOTLE, POLITICS (Benjamin Jowett trans., Franklin Library 1977) (1905);
217. MARCUS TULIUS CICERO, THE REPUBLIC; AND, THE LAWS (Niall Rudd trans., Oxford University Press 1998);
218. PLATO, The Republic, in COMPLETE WORKS 971 (John M. Cooper ed., G.M.A. Grube & C.D.C. Reeve trans., 1997);
219. PLUTARCH, LIVES OF TEN NOBLE GREEKS AND ROMANS (Edmund Fuller ed., Grolier 1968);
220. POLYBIUS, THE RISE OF THE ROMAN EMPIRE (Ian Scott-Kilvert trans., Penguin 1979).
221. BERNARD CRICK, THE AMERICAN SCIENCE OF POLITICS: ITS ORIGINS AND CONDITIONS 26 (1959).
222. JOHN BURGESS, POLITICAL SCIENCE AND COMPARATIVE CONSTITUTIONAL LAW (London, Ginn & Co. 1893);
223. W.W. WLLLOUGHBY, GOVERNMENT AND ADMINISTRATION OF THE UNITED STATES (Baltimore, The Johns Hopkins Press 1891);
224. WOODROW WILSON, CONGRESSIONAL GOVERNMENT: A STUDY IN AMERICAN POLITICS (Meridian Books 1956) (1885).
225. See CRICK, supra note 101, at 95-155.
226. Quoted in id. at 104.
227. An illustration of how central social science insights are to a modern view of law is provided by one of Langdell's critics, John Chipman Gray. In 1883 Gray wrote that "law [is] not at all like the natural sciences whose 'truths' and the best means of applying them are independent of opinion. ... [I]n law the opinions of judges and lawyers as to what the law is are the law." LAPIANA, supra note 5, at 19. This struggles with the idea that law is socially constructed and is best understood as a social
228. JOHN J. OSBORN, JR., THE PAPER CHASE (1970).
229. Edward Rubin, Why Law Schools Do Not Teach Contracts and What Socioeconomics Can Do About It, 41 SAN DIEGO L. REV. 55, 55-56 (2004).
230. Since Langdell and Eliot's time, much of the law governing contracts has been statutory, largely the result of the Uniform Commercial Code that was adopted throughout the nation during the 1960s. See Robert Braucher, Legislative History of the Uniform Commercial Code, 58 COLUM. L REV. 798, 798-99 (1958);
231. William Schnader, A Short History of the Preparation and Enactment of the Uniform Commercial Code, 22 U. MIAMI L. REV. 1, 2 (1967).
232. See George Fletcher, Two Modes of Legal Thought, 90 YALE L.J. 970, 995-97 (1981);
233. Edward Rubin, The Practice and Discourse of Legal Scholarship, 86 MICH. L. REV. 1835, 1847-65 (1988);
234. Pierre Schlag, Normative and Nowhere to Go, 43 STAN. L. REV. 167, 179-81 (1990);
235. Pierre Schlag, Normativity and the Politics of Form, 139 U. PA. L. REV. 801, 808 (1991);
236. Mark Tushnet, Legal Scholarship: Its Causes and Cure, 90 YALE L.J. 1205, 1208-15 (1981).
237. For a criticism of this process, see Harry Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34 (1992) (arguing that the emergence of what he calls the "law and" legal movements (e.g., law and economics), though serving important legal functions, has produced side effects detrimental to legal education and practice because many "law and" scholars "are generally disdainful of the practice of law").
238. Id. at 51;
239. see MICHAEL O'CONNOR, THE ORIGINS OF ACADEMIC ECONOMICS IN THE UNITED STATES (1944).
240. See THEODORE BRAMELD, PHILOSOPHIES OF EDUCATION IN CULTURAL PERSPECTIVE 321-36 (1955).
241. Id.
242. HERBERT KLIEBARD, THE STRUGGLE FOR THE AMERICAN CURRICULUM, 1893-1958 4-5 (2d ed. 1995).
243. See Pierre Schlag, Law and Phrenology, 110 HARV. L. REV. 877 (1997) (arguing that Langdell's idea of "law as science" has flourished academically, though it was developed and implemented in much the same way as was the now-rejected field of phrenology).
244. For an effort to provide a philosophical link between mental discipline and traditional subjects, see BRAMELD, supra note 112, at 287-314 (suggesting that "the perennialist reacts against the failures and tragedies of our age by regressing or returning to the axiomatic beliefs about reality, knowledge, and value that he finds fundamental to a much earlier age").
245. KLIEBARD, supra note 114, at 8-11.
246. Charles Eliot, Wherein Popular Education Has Failed, 14 FORUM 411, 425-26 (1892), quoted in KLIEBARD, supra note 114, at 9.
247. The actual classroom approach that Langdell initiated is generally described as the Socratic method. In actual fact, it displays only a vague resemblance to the method that appears in Plato's Socratic dialogues, but the use of this term accurately reflects the fact that this approach is more closely allied to modes of thought that prevailed two thousand, five hundred years ago than those of most contemporary educators. See ARISTOTLE, Politics, in 2 THE WORKS OF ARISTOTLE 445, 536-44 (Benjamin Jowett trans. 1952). Aristotle does include physical education and music appreciation in his educational program, however.
248. ERNEST KEEN, A HISTORY OF IDEAS IN AMERICAN PSYCHOLOGY 67-68 (2001).
249. E.g., G. STANLEY HALL, ASPECTS OF CHILD LIFE AND EDUCATION (1921);
250. see also KLIEBARD, supra note 114, at 11-1421.
251. Rousseau's major statement about education is EMILE, OR ON EDUCATION (Allan Bloom trans., Basic Books 1979) (1762). For an analysis of EMILE,
252. see ALEXANDER MEIKLEJOHN, EDUCATION BETWEEN TWO WORLDS (1942). Although Rousseau is certainly not a psychologist in the modern sense, and probably not even a founder of the field, he is certainly one of the first thinkers to realize that children are essentially different from adults, and that they gradually develop, rather than suddenly becoming rational beings who must then be trained and informed.
253. See generally PHILIP ARIES, CENTURIES OF CHILDHOOD (1962) (arguing that pre-modern people had no separate conception of childhood). This notion had still not penetrated into American education at the time Langdell developed the Harvard curriculum.
254. See JOHN DEWEY, DEMOCRACY AND EDUCATION: AN INTRODUCTION TO THE PHILOSOPHY OF EDUCATION (1916);
255. JOHN DEWEY, EXPERIENCE AND EDUCATION (1938);
256. JOHN DEWEY, LECTURES IN THE PHILOSOPHY OF EDUCATION (Reginald Archambault ed., 1966);
257. JOHN DEWEY, MORAL PRINCIPLES IN EDUCATION (1909);
258. JOHN DEWEY, PHILOSOPHY & EDUCATION IN THEIR HISTORIC RELATIONS (Elsie Clapp, transcriber, 1993);
259. JOHN DEWEY, THE CHILD AND THE CURRICULUM AND THE SCHOOL AND SOCIETY (4th ed. 1959);
260. JOHN DEWEY, THE WAY OUT OF EDUCATIONAL CONFUSION (1931).
261. In addition to the works cited in note 120, supra, see JOHN DEWEY, ART AS EXPERIENCE (1934);
262. JOHN DEWEY, HOW WE THINK: A RESTATEMENT OF THE RELATION OF REFLECTIVE THINKING TO THE EDUCATIVE PROCESS (1933).
263. See VICTOR KESTENBAUM, THE PHENOMENOLOGICAL SENSE OF JOHN DEWEY: HABIT AND MEANING (1977).
264. For a general statement of phenomenology, see EDMUND HUSSERL, IDEAS: GENERAL INTRODUCTION TO PURE PHENOMENOLOGY (W.R. Boyce Gibson trans., Collier-Macmillan 1962) (1931).
265. Even closer to Dewey's thought is the posthumously published EDMUND HUSSERL, EXPERIENCE AND JUDGMENT: INVESTIGATIONS IN A GENEALOGY OF LOGIC (James S. Churchill & Karl Ameriks trans., Northwestern Univ. Press 3d ed. 1992) (1973).
266. Cf. JOHN DEWEY, EXPERIENCE AND NATURE (1929).
267. Husserl and Dewey were exact contemporaries; both were born in 1859, and produced their major works during the same time, although Dewey lived somewhat longer (not surprisingly-he died at the age of 93). There was some contact between these two schools of thought-Husserl was familiar with WILLIAM JAMES, THE PRINCIPLES OF PSYCHOLOGY (1918),
268. for example, see Hilary Putnam, Pragmatisim and Realism, in THE REVIVAL OF PRAGMATISM: NEW ESSAYS ON SOCIAL THOUGHT, LAW, AND CULTURE 37, 39 (Morris Dickstein ed., 1998) - but they remain relatively separate even at the present time.
269. Systematic analysis of the child's mind and conceptual abilities would not occur until the work of Piaget, the earliest of which date from the 1920s. See, e.g., JEAN PIAGET, THE CHILD'S CONCEPTION OF THE WORLD (Joan & Andrew Tomlinson trans., 1929);
270. JEAN PIAGET, THE CONSTRUCTION OF REALITY IN THE CHILD (Margaret Cook trans., Basic Books 1954);
271. JEAN PIAGET, THE LANGUAGE AND THOUGHT OF THE CHILD (Routledge & Kegan Paul 3rd ed. 1971) (1932).
272. DEWEY, DEMOCRACY AND EDUCATION, supra note 123, at 130-38.
273. Id. at 156.
274. JOHN DEWEY, The Child and the Curriculum, in THE CHILD AND THE CURRICULUM AND THE SCHOOL AND SOCIETY, supra note 123, at 1, 11;
275. see also JOHN DEWEY, The School and Society, in THE CHILD AND THE CURRICULUM AND THE SCHOOL AND SOCIETY, supra note 123, at 30, 31-34 (arguing that the child, rather than the teacher or the course material, should be the "center of gravity" in the classroom, and therefore criticizing "uniformity of curriculum and method");
276. DEWEY, DEMOCRACY AND EDUCATION, supra note 123, at 158 (arguing that "[s]tudy is effectual in the degree in which the pupil realizes the place of the [course material] he is dealing with in carrying to fruition activities in which he is concerned," and that "[t]his connection of an object and a topic with the promotion of an activity having a purpose is the first and the last word of a genuine theory of interest in education").
277. DEWEY, ART AS EXPERIENCE, supra note 124, at 53.
278. DEWEY, DEMOCRACY AND EDUCATION, supra note 123, at 169. The parallel with phenomenology is notable: Husserl begins his introduction to phenomenology with the statement that "[n]atural knowledge begins with experience and remains within experience."
279. See HUSSERL, supra note 125, at 45 (emphasis omitted);
280. KESTENBAUM, supra note 125, at 25-40.
281. DEWEY, DEMOCRACY AND EDUCATION, supra note 123, at 188.
282. Id. at 146-50.
283. Id. at 156-57.
284. Id. at 155.
285. SEE LAWRENCE ARTHUR CREMIN, THE TRANSFORMATION OF THE SCHOOL: PROGRESSIVISM IN AMERICAN EDUCATION, 1876-1957 (1961);
286. MERLE CURTI, THE SOCIAL IDEAS OF THE AMERICAN EDUCATORS (1935);
287. PATRICIA ALBJERG GRAHAM, PROGRESSIVE EDUCATION: FROM ARCADY TO ACADEME (1967);
288. KLIEBARD, supra note 114;
289. "SCHOOLS OF TOMORROW," SCHOOLS OF TODAY: WHAT HAPPENED TO PROGRESSIVE EDUCATION (Susan F. Semel & Alan R. Sadovnik, eds., 1999).
290. Weaver, supra note 2, at 561-62.
291. The idea that the subject matter of legal education is socially constructed may sound like a rejection of natural law. That would not be much of a problem for the approach suggested here, since natural law is generally out of favor these days, but it is not even necessary to go that far. The topic of this discussion is legal education, not law itself, and thus the statement about social construction of law school's subject matter is one that any proponent of natural law can readily agree with. Natural law, as Aquinas pointed out, consists of the moral principles that any rational person can understand, and that God promulgates (since all law must be promulgated to be valid) through human reason. 2 AQUINAS, supra note 37, at 997-98 (MI, Q. 91, A.2). Clearly, there is no need to teach something of that sort in law school. What needs to be taught in a graduate professional program is human law, the complex rules of management and implementation that few would regard as being dictated by natural law.
292. For a modern version of this relationship, see Paul Robinson, Robert Kurzban & Owen D. Jones, Origins of Shared Intuitions of Justice (Univ. of Pa. Law School, Public Law Working Paper No. 06-47, 2006), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=952726, which discusses reasons why people, at least in the modern world, rate the relative seriousness of crimes in such similar ways. Again, shared instincts of this sort, which may be inherent in our mental framework, are not something law schools need to teach. What they need to teach are the complex doctrines that implement these instincts.
293. See sources cited supra note 29.
294. See sources cited supra note 32.
295. See IAN AYRES & JOHN BRAITHWAITE, RESPONSIVE REGULATION: TRANSCENDING THE DEREGULATION DEBATE (1992);
296. Ronald J. Gilson, Value Creation by Business Lawyers: Legal Skills and Asset Pricing, 94 YALE L.J. 239 (1984).
297. Gilson, supra note 141.
298. See Ronald Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960);
299. Gillian K. Hadfield, Problematic Relations: Franchising and the Law of Incomplete Contracts, 42 STAN. L. REV. 927 (1990);
300. Michael Klausner, Corporations, Corporate Law, and Networks of Contracts, 81 VA. L. REV. 757 (1995);
301. Oliver E. Williamson, Credible Commitments: Using Hostages to Support Exchange, 73 AM. ECONREV. 519 (1983).
302. Another set of questions that a transactional perspective can address more effectively involves the fairness of consumer contracts. See Michael I. Meyerson, The Reunification of Contract Law: The Objective Theory of Consumer Form Contracts, 47 U. MIAMI L. REV. 1263 (1993);
303. Todd D. Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 HARV. L. REV. 1173 (1983);
304. W. David Slawson, Standard Form Contracts and Democratic Control of Lawmaking Power, 84 HARV. L. REV. 529 (1971).
305. See IAN R. MACNEIL, THE NEW SOCIAL CONTRACT: AN INQUIRY INTO MODERN CONTRACTUAL RELATIONS (1980); Marc Galanter, Justice in Many Rooms: Courts, Private Ordering and Indigenous Law, 19 J. LEGAL PLURALISM 1 (1981);
306. Benjamin Klein & Keith B. Leffler, The Role of Market Forces in Assuring Contractual Performance, 89 J. POL. ECON. 615 (1981);
307. L.G. Tesler, A Theory of Self-Enforcing Agreements, 53 J. BUS. 27 (1980);
308. Williamson, supra note 143.
309. Susan P. Sturm, From Gladiators to Problem Solvers: Connecting Conversations About Women, the Academy and the Legal Profession, 49 DUKE J. GENDER L. & POL'Y 119 (1997).
310. See also MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING. AMERICAN SOCIETY (1994).
311. Despite the litigious character of American society, the majority of lawyers, even in large firms famous for their litigation practice, are not litigators. In a 1993 survey, large firms reported that the proportion of their work constituting litigation varied from twenty-two percent (for Shearman & Sterling LLP) to forty-four percent (for Gibson, Dunn & Crutcher LLP). GLENDON, supra note 145, at 40-41.
312. ROBERT A. KAGAN, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW (2001).
313. See David G. Litt, Jonathan R. Macey, Geoffrey P. Miller & Edward L. Rubin, Politics, Bureaucracies, and Financial Markets: Bank Entry into Commercial Paper Underwriting in the United States and Japan, 139 U. PA. L. REV. 369 (1990).
314. FREDERICK J. TURNER, THE FRONTIER IN AMERICAN HISTORY (1921) (existence of the frontier had a decisive impact on the development of American civilization). Adversarialism could be seen as part of the combative, individualistic spirit that flourished in frontier settings.
315. On the role of the Socratic method in the Langdellian curriculum, see sources cited supra note 30.
316. It is my impression, based on my older colleagues' recollection of their legal education, that the famous Socratic teachers of the past were particularly hard on women when they first began to appear in law school classes.
317. As Kristen Dauphinais has pointed out, this notion of fostering different analytic skills connects to another important theme in modern learning theory-Howard Gardner's concept of multiple intelligences. Kristen Dauphinais, Valuing and Nuturing Multiple Intelligences in Legal Education: A Paradigm Shift, 11 WASH. & LEE RACE & ETHNIC ANCESTRY L.J. 1 (2005). For an account of Gardner's theory,
318. see HOWARD GARDNER, FRAMES OF MIND: THE THEORY OF MULTIPLE INTELLIGENCES (1983);
319. HOWARD GARDNER, INTELLIGENCE REFRAMED: MULTIPLE INTELLIGENCES FOR THE TWENTY-FIRST CENTURY (1999).
320. Kimball, supra note 5.
321. ABA Standard 301(a)(5): "A law school shall require that each student receive substantial instruction in . . . the history, goals, structure, duties, values, rules and responsibilities of the legal profession and its members." A.B.A., SECTION OF LEGAL EDUCATION AND ADMISSIONS TO THE BAR, ABA STANDARDS FOR APPROVAL OF LAW SCHOOLS, 2005-06 EDITION 18-19 (2005), available at http://www.abanet.org/legaled/standards/2005- 2006standardsbook.pdf.
322. A.B.A., SECTION OF LEGAL EDUCATION AND ADMISSIONS TO THE BAR, A SURVEY OF LAW SCHOOL CURRICULA 15-17 (2004). The survey reports that apart from Professional Responsibility, the most common required courses among American law schools in the upperclass curriculum were Constitutional Law (52.8% of law schools), Evidence (46.4%), Business Associations (21.5%), Federal Tax (16.9%), Criminal Procedure (14.3%), Trusts and Estates (13.8%), Commercial Law (11.1%), and Trial Practice (7.8%). Since these are all in different areas of law, and the last one in the list is required by only 7.8% of law schools, it suggests that very few schools -fewer than 7.8 % in fact-have even two required courses in the same area.
323. This view is not limited to phenomenological accounts, see, e.g., ANTONIO DAMASIO, THE FEELING OF WHAT HAPPENS (1999), but also informs mechanistic and cognitive accounts,
324. see PATRICIA CHURCHLAND & TERRENCE SEJNOWSKI, THE COMPUTATIONAL BRAIN (1992);
325. DANIEL DENNETT, CONSCIOUSNESS EXPLAINED (1991);
326. STEPHEN KOSSLYN, IMAGE AND MIND (1980). Even psychological theories that emphasize the biological basis of thought, do not claim that we inherit, or can instinctively perceive, ideas, as Plato thought, but rather that biology predisposes us to learn from and respond to experience in specific ways.
327. See, e.g., STEVEN PINKER, THE BLANK SLATE: THE MODERN DENIAL OF HUMAN NATURE (2002);
328. MATT RIDLEY, THE ORIGINS OF VIRTUE: HUMAN INSTINCTS AND THE EVOLUTION OF COOPERATION (1996).
329. For Husserl's phenomenological account of scientific thought, see EDMUND HUSSERL, THE CRISIS OF EUROPEAN SCIENCES AND TRANSCENDENTAL PHENOMENOLOGY 21-68 (David Cam trans., Northwestern Univ. Press 1970) (1954).
330. In fact, recent studies of the brain reveal the surprising existence of "mirror neurons." These are neurons that fire when "an individual performs simple goal-directed motor actions, such as grasping a piece of fruit. The surprising part was that these same neurons also fire when the individual sees someone else perform the same act." Giacomo Rizzolatti, Leonardo Fogassi & Vittorio Gallese, Mirrors in the Mind, SCIENTIFIC AMERICAN, Nov. 2006, at 54, 56. The authors suggest that this correspondence may be the feature that allows an individual to comprehend the actions of another individual, thus facilitating the learning process, and they specifically note that it tends to confirm phenomenology. Id.
331. See, e.g., STEVENS, supra note 7, at 213-15;
332. Marshall W. Houts, A Course in Proof, 7 J. LEGAL BOUC. 418 (1955);
333. Howard L. Oleck, The "Adversary Method" of Law Teaching, 5 J. LEGAL EDUC 104 (1952). This approach seems to date from the 1950s, at least as an explicit educational strategy.
334. See, e.g., CLINICAL EDUCATION AND THE LAW SCHOOL OF THE FUTURE (Edmund Kitch, ed., 1969);
335. PHILIP G. SCHRAG & MICHAEL MELTSNER, REFLECTIONS ON CLINICAL LEGAL EDUCATION (1998);
336. STEVENS, supra note 7, at 214-16;
337. Robert J. Condlin, Clinical Education in the Seventies: An Appraisal of the Decade, 33 J. LEGAL EDUC 604 (1983);
338. George S. Grossman, Clinical Legal Education: History and Diagnosis, 26 J. LEGAL EDUC. 162 (1974);
339. Philip C Kissam, Lurching Toward the Millennium: The Law School, the Research University, and the Professional Reforms of Legal Education, 60 OHIO ST. L.J. 1965, 1993-2000 (1999);
340. Charles H. Miller, Clinical Training of Law Students, 2 J. LEGAL EDUC. 298 (1950);
341. Spiegel, supra note 3.
342. The concept of clinical education gained currency in the 1930s, See John S. Bradway, Some Distinctive Features of a Legal Aid Clinic Course, 1 U. CHI. L. REV. 469 (1933);
343. Jerome Frank, Why Not a Clinical Lawyer-School?, 81 U. PA. L. REV. 907 (1933). Implementation did not begin on a significant scale until the 1940s and 50s however.
344. See SCHRAG & MELTSNER, supra, at 3-7;
345. STEVENS, supra note 7, at 215-16.
346. In 1992, the American Bar Association issued the results of an extensive study regarding legal education. A.B.A., SECTION OF LEGAL EDUCATION AND ADMISSIONS TO THE BAR, TASK FORCE ON LAW SCHOOLS AND THE PROFESSION: NARROWING THE GAP, LEGAL EDUCATION AND PROFESSIONAL DEVELOPMENT - AN EDUCATIONAL CONTINUUM (1992). The "MacCrate Report," so named for the Chairperson of the Task Force, Robert MacCrate, strongly recommended that law schools substantially increase skills training. Remarkably, it did not deal with the relationship between the recommended skills training and the remainder of the curriculum. Indeed, it appears largely innocent of any contact with educational theory, and almost other-worldly in its focus on a set of defined, low-level practice skills.