The Langdellian Revolution
Professor William R. Long 10/21/04
American Jurisprudence at Mid (19th) Century
The assignment for today focused on Feldman's treatment of American jurisprudence from about 1820-1900 and then Kimball's article on the teaching method of C.C. Langdell, first dean of the "modern" Harvard Law School. HLS had begun around 1815 and usually had two professors until Langdell's time (Story and Greeenleaf--mostly Greenleaf-- for example were the law school in the 1830s and 1840s) The transformation of American education after the Civil War brought changes in the nature of legal education as well. This page will raise a few points from each source to aid our discussion today.
I think Feldman is at his best (and his most uncritical worst) in this section of his book. He is at his best in sketching broad themes that could be said to characterize the period. However, the section is laden with terminology, and you ought not to let that terminologically-rich discussion daunt you. Our discussion, both here and in class, will begin with Feldman's terminology--the words he uses to try to describe the period.
Feldman's Terminology and Themes
For example, he talks about a movement from natural law to natural rights or from natural law to instrumental jurisprudence. He mentions the discrediting of natural law philosophy after the Civil War because Southern intellectuals/politicians clung to it, and the theory ultimately became associated with the dying gasps of slaveholders. And then, in what I think is his worst part, he trashes Langdell, as most scholars do, with words such as "formalist," "conceptualist," or "deductive" thinker, using these words as knife thrusts to make sure that the corpse of Langdell doesn't rise again to haunt us [I think Freudian terminology is very useful in explaining how Langdell has been treated by legal scholarship until Kimball]. I would like you to notice his use of terms and make a list of them, to see if we understand how he is conceptualizing the period.
In addition to those already listed you might pay attention also to his emphasis (p. 84) on the "post-bellum" blossoming of secularism and historicism. What does he mean by this? Other terms that you might note are "positivism" and the contrast he tries to draw between "deductive" and "inductive" in Langdell's thought. His treatment of the Lochner case and era is also pretty typical of most scholarship, and the profusion of his own verbiage on the decision (p. 101) is illuminating. What does it all mean? I would like to take time in class to lay out what I call the "generations of American jurisprudence" in class so that Feldman's work and language becomes more comprehensible.
I assigned portions of Kimball's long article because he does something that none of the other scholars who treat Langdell have done. He actually went to the Root Special Collections room at the Harvard Law School and asked to see all the material on Langdell, and he spent the better part of a year trying to reconstruct Langdell's academic life from the bottom up (that is, with serious attention to chronology). That is, he wanted to get behind the "labels" that are thrown upon Langdell. Thus, we can see in the article a tendency to try to "overcorrect" the scholarship by emphasizing Langdell's flexible temper of mind and openness to discussion and learning. This is Kimball's "agenda," and in my mind he accomplishes it exceedingly well. It is one of the most meticulously researched articles on legal history I have read in a long time.
That being said, the real contribution of the article is twofold: (1) to periodize Langdell's life at HLS in order to capture the essence of his work and contribution from each period and (2) to "recreate" class discussions based on marginal notes in casebooks and excerpts from the cases themselves. On the way to doing this, however, Kimball's article overflows with suggestive ideas and questions. Here are several that entered my mind: (a) Of what did Langdell's reform efforts at HLS consist? (b) How did this fit into the evolution of the American professions? (c) What were the modes of legal education before Langdell, and why did he pursue the casebook method? (d) If the name of "legal formalist" can be ascribed to Langdell, what does this designation mean? (e) What does it mean for Langdell that law is a science? What is the role of cases in the "scientific" discipline of law? and, finally, (f) Why does Kimball entitle the article as he does?
Our day on American jurisprudence at mid (19th) century not only introduces us to the concept of the casebook and the nature of law as an objective science (which I believe is the heart and soul throbbing behind the various Restatements of the law as they are even being done now) but gives us a window into the process of how historical figures become associated with one idea (i.e., Langdell "stands" for "formalism") until someone actually goes back and reads the data differently.
Copyright © 2004-2007 William R. Long