October 26--Legal Realism I
Professor William R. Long
Understanding its Background--Reviewing Langdell
My approach to jurisprudence has been to treat movements and ideas historically by considering the work of prominent individuals over time. Though I believe that ideas can be discussed qua ideas, I believe that the expression of ideas emerges through focused reflection on a person's background, inherited influences and practical concerns. Thus, jurisprudence for me is the study of the way that legal ideas have been shaped, have matured and have found expression over time.
Understanding the Background of Legal Realism
We cannot place and understand legal realism without realizing that it is fundamentally a movement in reaction to Langdell and a spirit of thinking that characterized the last decades of the 19th century. As a result, Langdell was caricatured, debunked, trashed, dismissed, railed against and abused by the next two generations of legal thinkers. In my judgment, however, Langdell contributed mightily to the formation of modern American legal thought.
1) He introduced the casebook as a means by which one studies law. 2) He emphasized that the focus of legal study should be the mastery of doctrine. 3) He believed that cases were the instruments through which doctrine was communicated, and that one had to isolate these precious pieces of doctrine through intense consideration of cases. 4) Langdell believed that the number of legal principles to be learned was not large, but that the fine-tuning of these principles took a lot of effort. Thus, in contracts law, the major categories were offer, acceptance and consideration (sound familiar?), and the detailed focus on contracts cases would be to "fill in" the various doctrines with more precise expressions of law (when is an offer truly made? is it revocable? how does the mailbox rule work? etc). 5) Langdell believed that what he was doing was to establish legal science as an independent intellectual discipline, whose "laboratory" was the law library and whose cases were the "experiments" one would "perform."
Thus, the goal of legal education was not simply to learn the trade (by apprenticeship) or even to master the professor's lectures; the goal was to tease out principles from cases and then use these principles to fill out the full panoply of legal doctrine. Note that Langdell was only concerned, in his rather long career, with private law; he made a distinction between the predictability and "settled" nature of private law and the unpredictable and fuzzy nature of public (e.g., constitutional) law. His concern was to establish rules for the former.
Feldman and Kimball
In studying Langdell, I asked you to look not only at Feldman's treatment of him but also at Kimball's article. Feldman gives the "typical" approach to Langdell--that he was a rigid formalist who loved the rule more than justice and wanted clean categories and abstract rules rather than decisions or approaches that seemed to fit the needs of life. Apart from the fact that this approach is based only on one quotation (which Bix picks up, if you noticed--so the trashing of Langdell continues), the words of derogation really don't mean much to me. I find Kimball's approach and article much more intellectually refreshing. He challenges the scholarly consensus by going back to the sources, which is what Langdell said he wanted to do (return to the fontes--this time the sources being the Harvard Law Library's special collections), and presents a different picture of Langdell, both as a teacher and scholar. Though he may bend over backwards a bit to show Langdell's "flexibility," his basic point is sound. Langdell was interested in law as it was practiced (the practice of merchants was important to him in determining what the law of commerce should be) and not simply in "arid" or "conceptual" or "abstract" or "idealistic" or "formal" categories that had nothing to do with life.
Legal Realist "Problems" with Langdell
In my judgment, the legal realists (beginning with Holmes) denigrated Langdell's contribution because they lived in a completely different intellectual climate than Langdell. Langdell, born in 1825, was shaped by the agrarian, small-town, Protestant, individualistic ethos of the mid-19th century. I believe that the influence of the scientific model of study and the classificiatory urge (growing in prominence since Linneaus in the 18th century), made him want to "control" the legal environment by classifying it. So, the casebook method is nothing more, in my judgment, than the application of the Linnean method to legal discourse. He must have thought of himself as almost like a Balboa or Magellan--coming on hitherto unexamined territory and claiming it not for Spain but for modern science. In addition, the experience of growing up in the absolutely uncontrollable political climate of the 1840s and 1850s would make anyone want to control the environment in which he lived and worked. Thus, the growth of science and a period of political quiescence after the Civil War created the context for Langdell to flourish. Let's now turn to the concerns of the early legal realists.
Copyright © 2004-2007 William R. Long