The American Law Institute and the Triumph of Modernist Jurisprudence

Law and History Review

Volumn 15, Issue 1, 1997, Pages 1-47

  White, G Edward ^a  

^a NONE

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EID: 80053886613     PISSN: 07382480     EISSN: 19399022     Source Type: Journal    
DOI: 10.2307/827704     Document Type: Article

References (120)

1. See generally G. Edward White, “From Mechanical Jurisprudence to Sociological Jurisprudence,” in Patterns of American Legal Thought (1978), 100-121.
2. See, e.g., Jerome Frank, Law and the Modern Mind (1930), 100-117; Arthur Corbin, “The Law and the Judges,” Yale Review 3(1914): 234-50.
3. See G. Edward White, Tort Law in America (1980), 84-91; Laura Kalman, Legal Realism at Yale (1986), 69-97.
4. E.g., Benjamin Cardozo, The Nature of the Judicial Process (1921); Louis D. Brandeis, “The Living Law,” Illinois Law Review 10 (Feb. 1916): 461-71.
5. E.g., Muller v. Oregon, 208 U.S. 412 (1908). See Stephen Baskerville, Of Laws and Limitations (1994), 144-46. See also Michael Parrish, Felix Frankfurter and His Times: The Reform Years (1982), 165, discussing Frankfurter's brief in Adkins v. Children's Hospital, 261 U.S. 525 (1923).
6. See, e.g., William Twining, Karl Llewellyn and the Realist Movement (1973), 275-76; Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (1983), 133-35.
7. See N. E. H. Hull, “Restatement and Reform: A New Perspective on the Origins of the American Law Institute,” Law and History Review 8 (1990): 55-96; 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): 235-81.
8. C. C. Langdell, “Harvard Celebration Speeches,” Law Quarterly Review 3 (1887): 24. 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 M. H. Hoeflich, “Law and Geometry: Legal Science from Leibniz to Langdell,” American Journal of Legal History 30 (April, 1986): 95-121.
10. See G. Edward White, The Marshall Court and Cultural Change (1988), 144-55, 361-62; R. Kent Newmyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (1985), 44-45, 68; William LaPiana, Logic and Experience (1994), 29-54.
11. See Thomas Grey, “Langdell's Orthodoxy,” University of Pittsburgh Law Review 45 (1984): 15, 20, 24. Stephen Siegel's recent article, “Joel Bishop's Orthodoxy,” Law and History Review 13 (1995): 215-59, has shown that it was possible for Langdell's contemporaries to retain religious-based conceptions of law as a “science.”
12. For an early recognition of this tendency, see David Hollinger, Morris Cohen and the Scientific Ideal (1975), 147-48, 152. A fuller account of the epistemological assumptions of early twentieth-century American social science is Dorothy Ross, The Origins of American Social Science (1992), 303-90.
13. Langdell, A Selection of Cases, vii.
14. A Selection of Cases., iv.
15. A Selection of Cases., vii. Context for disciplinary fragmentation in late nineteenth-century American academic life can be found in Thomas Haskell, The Emergence of Professional Social Science (1977).
16. Langdell, A Selection ofCases, vii.
17. Grey, “Langdell's Orthodoxy,” 8-9, 427; Siegel, “Joel Bishop's Orthodoxy,” 222-25. 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 G. Edward White, “Revisiting James Bradley Thayer,” Northwestern University Law Review 88 (1993): 48-83.
18. Proceedings of the American Law Institute 1 (1923): 68.
19. Proceedings of the American Law Institute., 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): 70.
21. Proceedings of the American Law Institute., 73.
22. Proceedings of the American Law Institute., 74.
23. Proceedings of the American Law Institute…, 70.
24. Proceedings of the American Law Institute…., 6.
25. Proceedings of the American Law Institute…., 70.
26. Proceedings of the American Law Institute……, 77.
27. Proceedings of the American Law Institute……., 78.
28. Proceedings of the American Law Institute………., 80.
29. Proceedings of the American Law Institute…………, 82.
30. For an example of that alternative reading, see Joseph W. Bingham, “What Is the Law?” Michigan Law Review 11 (1912): 109. 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 John Henry Schlegel, “Between the Harvard Founders and the American Legal Realists,” Journal of Legal Education 35 (1985): 311-25.
31. Treatise writing had continued in the late nineteenth and early twentieth centuries, and by the early 1920s such volumes as Joseph Beale's Conflict of Laws (1916), Samuel Williston's Contracts (1920), and John Wigmore's Evidence (1923) had appeared.
32. See Hull. “Restatement and Reform,” 79, 83-85.
33. See John W. Davis, Proceedings of the American Law Institute 2 (1924): 113.
34. Proceedings of the American Law Institute 1 (1923): 23.
35. See Proceedings of the American Law Institute 2 (1924): 89.
36. See Proceedings of the American Law Institute., 23.
37. See Proceedings of the American Law Institute., 24.
38. See Proceedings of the American Law Institute…, 113.
39. For a more detailed discussion of premodernism and modernism as epistemological systems, see G. Edward White, “The Canonization of Holmes and Brandeis: Epistemology and Judicial Reputations,” New York University Law Review 70 (1995): 103-8.
40. 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,” 48; Morton Horwitz, The Transformation of American Law, 1870-1960 (1992), 10-11, 164-67, 206-7. 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.
41. 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).
42. See LaPiana, Logic and Experience, 5, 65-77.
43. See Stevens, Law School, 92-116, 172; Jerome Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (1976), 40-157.
44. Auerbach, Unequal Justice, 40-44; Jean Matthews, Rufus Choate: The Law and Civic Virtue (1980), 24-26.
45. Stevens, Law School, 74-79.
46. Law School., 100, 116. See also Auerbach, Unequal Justice, 113-19.
47. Auerbach, Unequal Justice, 113.
48. Quoted in Unequal Justice., 115.
49. Quoted in Quoted in Unequal Justice., 114.
50. Quoted in Quoted in Quoted in Unequal Justice…, 115.
51. Quoted in Quoted in Quoted in Quoted in Unequal Justice…., 115-16.
52. Quoted in Quoted in Quoted in Quoted in Unequal Justice…., 116-17; Stevens, Law School, 102.
53. Quoted in Auerbach, Unequal Justice, 112.
54. Quoted in Ellen Lagemann, The Politics of Knowledge (1989), 80.
55. Proceedings of the American Law Institute 1 (1923): 48.
56. Proceedings of the American Law Institute. See also the discussion in Hull, “Restatement and Reform,” 86.
57. New York Times, 24 February 1923.
58. See White, “Canonization of Holmes and Brandeis,” 106-8.
59. Compare the discussion of the ALI in Twining, Karl Llewellyn, 274-76.
60. A number of scholars have made this general point in different ways. Compare Twining, Karl Llewellyn, 274-76 with John Henry Schlegel, American Legal Realism and Empirical Social Science (1995), 25-57, and Kalman, Legal Realism at Yale, 10-20. 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]: 1222-64). 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, 182-85. 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.
61. Quoted in White, Tort Law In America, 56-57.
62. 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): 999-1028, 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.
63. Ross, “Modernism Reconsidered,” Modernist Impulses, 8. J 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.
64. Ross, Origins of American Social Science, xiii-xv. 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).
65. The first explicit use of the term came in Pound's essay, “The Need of a Sociological Jurisprudence,” Green Bag 19 (1907): 607-15. 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): 339-53.
66. 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 G. Edward White, The American Judicial Tradition, expanded ed. (1988), 258-59.
67. 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.”
68. See Hull, “Vital Schools of Jurisprudence”; Joseph William Singer, “The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld,” Wisconsin Law Review (1982): 975-1059. See also the discussion in Horwitz, Transformation of American Law, 152-56.
69. For the fullest statement of his views, see Fundamental Legal Conceptions As Applied In Judicial Reasoning And Other Legal Essays, ed. Walter Wheeler Cook (1919). 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.
70. 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.
71. Hull, “Vital Schools of Jurisprudence,” 259.
72. See Fundamental Legal Conceptions, 5.
73. This phrase appeared in his address to the annual meeting of the Association of American Law Schools. See Wesley Newcomb Hohfeld, “A Vital School of Jurisprudence and Law,” Handbook of the Association of American Law Schools 14(1914): 88.
74. 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.
75. See Robert Stevens, Law School: Legal Education in America (1983), 98.
76. Law School: Legal Education in America., 135.
77. Benjamin Cardozo, The Growth of the Law (1924), 6.
78. Boston University Law Review 13 (1933): 204, 208.
79. William Draper Lewis, Proceedings of the American Law Institute 7 (1930): 209, quoted in Farnum, “Terminology and the American Law Institute,” 208.
80. Lewis, Proceedings: 207’. See Farnum, “Terminology and the American Law Institute,” 209.
81. Harry Bigelow, Proceedings of the American Law Institute 1 (1930): 207.
82. Farnum, “Terminology and the American Law Institute,” 212, 210.
83. Quoted in “Terminology and the American Law Institute,”., 213.
84. Quoted in “Terminology and the American Law Institute,”., 213.
85. Quoted in “Terminology and the American Law Institute,”…, 214-15.
86. Quoted in “Terminology and the American Law Institute,”…., 216.
87. Quoted in “Terminology and the American Law Institute,”……, 217. Italics in original.
88. See Hull, “Vital Schools of Jurisprudence,” 256-63.
89. “Vital Schools of Jurisprudence,”., 259.
90. Fundamental Legal Conceptions, 28. Hohfeld's original rendering was in “Some Fundamental Legal Conceptions As Applied in Judicial Reasoning,” Yale Law Journal 23 (1913): 21.
91. Arthur Corbin, “The Restatement of the Common Law by the American Law Institute,” Iowa Law Review 15 (1930): 19, quoted in Farnum, “Terminology and the American Law Institute,” 217-18.
92. See Charles Clark, “The Restatement of the Law of Contracts,” Yale Law Review 42 (1933): 649-52.
93. Karl Llewellyn, “A Realistic Jurisprudence-The Next Step,” Columbia Law Review 30 (1930): 431; “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).
94. Llewellyn, “Some Realism About Realism,” 1237.
95. Jerome Frank, Law and the Modern Mind (1930), 147.
96. Roscoe Pound, “The Call for a Realist Jurisprudence,” Harvard Law Review 44 (1931): 707.
97. Benjamin Cardozo, untitled address, Report of the New York State Bar Association 55 (1932): 272. 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.”
98. Jerome N. Frank to Benjamin N. Cardozo, September 9, 1932, Jerome Frank Papers, Yale University Library, quoted in Kaufman, Cardozo, 787-89. Cardozo wrote Frank a short and selfdeprecatory 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): 369. 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.
99. Myers McDougal, “Book Review [of Volumes 1 and 2 of the Restatement of Property],” Illinois Law Review 32 (1937): 510, 513.
100. “Book Review [of Volumes 1 and 2 of the Restatement of Property],”., 513.
101. McDougal was referring to the Restatements of Contracts, Conflict of Laws, Torts, and Property. For examples of critical reviews, see below, 37-38.
102. Clark, “Restatement of the Law of Contracts,” 653, 655.
103. Leon Green, “The Torts Restatement,” Illinois Law Review 29 (1935): 584-85, 592.
104. Joseph Beale, Proceedings of the Association of American Law Schools 14 (1914): 38, quoted in Ernest G. Lorenzen and Raymond J. Heilman, “The Restatement of the Conflict of Laws,” University of Pennsylvania Law Review 83 (1935): 556.
105. Walter Wheeler Cook, “The Logical and Legal Bases of the Conflict of Laws,” Yale Law Journal 33 (1924): 459, quoted in Lorenzen and Heilman, “Restatement of the Conflict of Laws,” 558.
106. Edward S. Robinson, Law and the Lawyers (1935), 36.
107. Herbert F. Goodrich, “Institute Bards and Yale Reviewers,” University of Pennsylvania Law Review 84 (1936): 452-53, 454.
108. Llewellyn, “A Realistic Jurisprudence,” 434, 435.
109. Thurman Arnold, “Institute Priests and Yale Observers-A Reply to Dean Goodrich,” University of Pennsylvania Law Review 84 (1939): 813.
110. “Institute Priests and Yale Observers-A Reply to Dean Goodrich,”., 813, 816.
111. “Institute Priests and Yale Observers-A Reply to Dean Goodrich,”., 818-22.
112. “Institute Priests and Yale Observers-A Reply to Dean Goodrich,”…, 817.
113. “Institute Priests and Yale Observers-A Reply to Dean Goodrich,”…., 823.
114. “Institute Priests and Yale Observers-A Reply to Dean Goodrich,”…., 823-24.
115. 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).
116. 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.
117. 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.
118. See Karl Llewellyn, The Common Law Tradition (1960), 509-10.
119. Llewellyn, The Common Law Tradition, 509-10.
120. On the origins of Llewellyn's involvement with the Uniform Commercial Code, see Twining, Karl Llewellyn, 276-82.