langdell and a selection of cases on the law of contracts and kimball and rehabilitation of reputation of langdell

The purpose of this and the next mini-essay is to go through Kimball's meticulously-researched article on Langdell and to understand the purpose of his Selection of Cases on the Law of Contracts (1871), the first case book in American legal education.

Kimball's Aims and Langdell's Reputation

No scholar comes to a field as a tabula rasa, and no field is virgin territory when the scholar first gets there. Kimball himself is not a lawyer or law professor but is a professor of education and scholar of the history of the American professions. Thus, he is very interested in understanding the methods used in education and the periods in which these methods were first put into play. This explains his magnificent focus on the nature of Langdell's pedagogical method as well as his imaginative reconstruction of a few of Langdell's classes. He also attempts to think methodologically on how to reconstruct conversations when he has no record of an actual conversation, but I will comment no further on that section of the paper (sec. III).

But it is the "field" as Kimball finds it that provides the motivation for his work. Langdell, in a word, has become a symbol in American legal education, a person who represents something that later scholars grew to despise, and so Langdell has been treated shabbily by the legal establishment for decades. The bad treatment can be, in my judgment, very easily explained. As often is the case, ambitious students want to go beyond, and sometimes trash the reputation of, their teachers, especially if their teachers evinced a sort of superciliousness or distance that ticked off the students. In addition, students sometimes like to "bury" their professors if the methods the professor used are seemingly out of date when the student writes. We saw how this was the case with Bentham/Blackstone.

All of these factors are at work in the interpretation of Langdell. His later students perceived him as "distant" and "rigid," (though Kimball gives a convincing reason why Langdell might have become that way--his blindness), and they also initiated a new method in legal study (legal realism) that made Langdell's academic interest in systematic description of legal doctrine seem not merely quaint but a sort of betrayal of law. As a result, OW Holmes, as early as the early 1880s, called Langdell the finest "legal theologian" of the times (and this appellation was not commendatory). Then, Roscoe Pound, a Dean of HLS early in the 20th century, referred to Langdell's jurisprudence as "conceptualism," and we were off to the races. Allegations of Langdell's "rigidity," his being a representative of "legal formalism" or "deductive reasoning" were thrown around like thousand dollar checks at political fund-raising dinners. The gloves were off, and subsequent scholars joined in the ritual trashing of Langdell's reputation, culminating in Grant Gilmore's assessment, quoted by Kimball, that Langdell was, essentially, a "stupid" person. Sort of an interesting way to characterize the most significant force in American legal education, isn't it? If you think of this for more than one moment, you tend to ask the question, "If the most signal eminence in American legal education was essentially stupid, what are the rest of us doing?"

Getting Beyond Labels

Kimball basically wants to rehabilitate Langdell's reputation as an educator in this article. I will turn to that attempt in the next essay. Here I want to go through what Langdell thought he was doing when he put together the first casebook in law in 1871, for it was this effort, along with his putative teaching style, that called down so much ridicule.

Langdell was called from practicing law in New York to head up the "revived" HLS after the Civil War, during the second half of academic year 1869-70. Charles William Eliot, President of Harvard from 1868-1908, was probably the most significant force in American higher education in the last third of the nineteenth century, and he oversaw the "professionialization" of the university. Langdell would be his man to bring a professional style and method to the study of law. Not only would there be changes in the way legal education was arranged (more in the next essay), but there were changes in the content of legal education. With respect to the latter, legal education became an education in the doctines of private law. Courses on constitutional law or public utilities or issues touching public policy were not even glints in the eyes of law school deans.

But what does it mean that legal education, for Langdell, focused on the "doctrines of private law"? His brief introduction to the 1871 A Selection of Cases on the Law of Contracts tells us what he means. Let's first begin with the notion of the case book. Few focus on that part of the introduction. Langdell tells us what he faced as a new faculty member:

"I was expected to take a large class of pupils, meet them regularly from day to day, and give them systematic instruction in such branches of law as had been assigned to me" (Preface, v).

What goals or processes did he want to accomplish? There were three: (1) "that the efforts of the pupils should go hand in hand with mine"--that is, that students "should study with direct reference to my instruction"; (2) that the study "should be of the kind from which they might reap the greatest and most lasting benefit"; and (3) that the pupils might at least derive a greater advantage from attending [class] than from devoting the same time to private study" (Id.).

Voila, the Casebook

After thinking about the issues for a while, Langdell decided that only one mode held out reasonable prospect of success: "and that was, to make a series of cases, carefully selected from the books of reports, the subject alike of study and instruction." But then he faced an almost insuperable obstacle. The HLS library had one or two copies only of the so-called nominate reporters (this was at least 15 years before West got into the act of publishing cases) and there might be 75 students in a class. With no Xerox machines, of course, what practically could be done? He recognized these practical problems and then decided:

"It was with a view to removing these obstacles, that I was first led to inquire into the feasibility of preparing and publishing such a selection of cases as would be adapted to my purpose as a teacher" (Id. at vi).

Thus, the casebook, the most significant invention in the history of American legal education, arose from a practical necessity which existed at the time (and which exists no longer, I would claim).

The Casebook and Legal Doctrine

But there is more. The casebook not only emerged from a practical need but also fulfilled the purposes of Langdell because of his view of the nature of legal doctrine. Langdell, in short, was a system-builder and felt that it was his task to build a system of doctrines that would constitute a field of legal study. "Law, considered as a science, consists of certain principles or doctines." Lawyers needed to have a mastery of these doctrines "as to be able to apply them with constant facilty and certainty to the ever-tangled skein of human affairs." The number of distinct legal doctrines was, in Langdell's mind, rather few, and his task as professor was to cull the cases and find those which best taught the most significant legal doctrines. Thus Langdell was "inventing" the notion that a field of law can be reduced to "doctrines" of law and that these legal doctrines could be found in a comparatively small number of cases. He gave us these cases in the casebook.

Now, on to Kimball's article.

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