legal realism and pound and jerome frank and brandeis brief

Pound is well aware that the Langdellians have emphasized the "scientific" character of law. He likes the term, as does everyone, but Pound wants to wrest it from the Langdellians and put a new "spin" on science. For Pound it will mean the use of the new "social sciences" to help clarify legal concepts. Before he gets there, however, he argues:

"Two dangers have to be guarded against in a scientific legal system, one of them in the direction of the effect of its scientific and artificial character upon the public, the other in the direction of its effect upon the courts and the legal profession. With respect to the first danger, it is well to remember that law much not become too scientific for the people to appreciate its workings...In the other direction..the effect of all system is apt to be petrifaction of the subject systematized. Perfection of scientific system and exposition tends to cut off individual initiative in the future, to stifle independent consideration of new problems and of new phases of old problems, and to impose the ideas of one generation upon another...Legal science is not exempt from this tendency. Legal systems have their periods in which science degenerates, in which system decays into technicality, in which a scientific jurisprudence becomes a mechanical jurisprudence."

Then, after clearing the decks by taking the word science over for his purposes and illustrating many places in the law where "mechanical" legal doctrine seems to be in place (i.e., "a rigid scheme of deductions from a priori conceptions"--note how a negative characterization of Langdell, who died two years earlier, is coming in without even mentioning Langdell's name) Pound says:

"The idea of science as a system of deductions has become obsolete, and the revolution which has taken place in other sciences in this regard must take place and is taking place in jurisprudence also."

What, then, do we need? Pound explains:

"We have, then, the same task in jurisprudence that has been achieved in philosophy, in the natural sciences and in politics. We have to rid ourselves of this sort of legality and to attain a pragmatic, a sociological legal science....Herein is the task of the sociologial jurist. Professor Small (Albion Small of U of Chicago) defines the sociological movement as 'a frnak endeavor to secure for the human factor in experience the central place which belongs to it in our whole scheme of thought and action.' The sociological movement in jurisprudence is a movement for pragmatism as a philosophy of law; for the adjustment of principles and doctrines to the human conditions they are to govern rather than to assumed first principles; for putting the human factor in the central place and relegating logic to its true position as an instrument."

Pound says much more but I think you get his drift...

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Then, in Muller v. Oregon, 208 US 412 (1908) attorney Louis Brandeis, who himself would be appointed as the first Jew to the Court in 1916, did something unique until that time in the annals of American law. He penned a brief that was largely statistics. Oregon enacted a law that limited women to ten hours of work per day in factories and laundries. This was seemingly the kind of statute struck down in Lochner on "freedom of contract" grounds. But the Court held that there was no violation of the 14th Amendment in this case. Why? Justice Brewer argued that his opinion was based on the proposition that physical and social differences between the sexes warranted a different rule respecting labor contracts. Thus, ironically, Brandeis' brief, a radical innovation, was used to support legislation limiting the hours a woman could work. I will hand out excerpts from the brief in class, but here is how the second part of his brief begins: "The World's Experience upon Which the Legislation Limiting the Hours of Labor for Women is Based.

I. The Danger of Long Hours
A. Causes
i. Physical Differences Between Men and Women

"The dangers of long hours for women arise from their special physical organization taken in connection with the strain incident to factory and similar work. Long hours of labor are dangerous for women primarily because of their special physical organization..." There follow many quotations from reports, such as the "Report of Select Committee on Shops Early Closing Bill, British House of Commons, 1895" or a "Report of the Maine Bureau of Industrial and Labor Statistics, 1888."

I will ask you about your perception of how revolutionary this "Brandeis Brief" is.

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We will conclude with the excerpt I handed out from Jerome Frank's 1930 work Law and the Modern Mind. One quotation is just too good to miss. He is claiming that judges make decisions on the basis of their "political, economic and moral prejudices" (actually, this is very similar to Holmes' notion of "social advantage"). Then he says:

"But are not those categories--political, economic and moral biases--too gross, too crude, too wide? A man's political or economic prejudices are frequently cut across by his affection for or animosity to some particular individual or group, due to some unique experience he has had; ....the judge's sympathies and antipathies are likely to be active with respect to the persons of the witness, the attorneys, and the parties to the suit. His own past may have created plus or minus reactions to women, or blonde men, or plumbers, or ministers, or college graduates, or Democrats. A certain twang or cough or gesture may start up memories pleasant or painful to the man. Those memories of the judge, while he is listening to a witness with such a twang or cough or gesture, may affect the judge's initial hearing of, or subsequent recollection of, what the witness said..."

Frank will go on to suggest that we should study psychology in law school and that judges should probably be psychoanalyzed before they go on the bench. Reactions?

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