roscoe pound and karl llewellyn and sam bass warner and thomas erskine holland and jurisprudence

I think Pound's classificatory instinct and generality of speaking, especially in a 1931 law review article on the occasion of the 90th birthday of Holmes ("The Call for a Realist Jurisprudence," 44 HLR 697 (1931)), along with other factors Hull mentions (see below), sent the mercurial Llewellyn over the edge. For example, in this article, Pound pontificated in his typical way that previous jurisprudential "schools" such as the rationalists, historical jurists, analytical jurists and positivists, had tried to look at the legal system realistically but, "our new realist rejects all these conceptions of juristic reality." But who are these "new realists?" Pound is tantalizingly evasive. Rather than naming names, he decided to list, as a good botanist, five characteristics of this sort of new way of thinking. Among them were: (1) "faith in masses of figures as having significance in and of themeselves; (2) belief in the exclusive significance or reality of some one method or line of approach; (3) the conception by many of the new juristic realists of law as a body of devices for the purposes of business instead of as a body of means toward general social ends." Thus, we see that Pound is pounding away at something significant in his mind here, but without the kind of specificity that would lead any particular person to feel that he was attacked.

Karl Llewellyn

Llewellyn was an ambitious young professor of law at Columbia (born 1893) and had exchanged letters with Pound beginning in the mid-1920s about various articles the others were writing. Llewellyn was suitably deferential and Pound was appreciative of the attention by a younger scholar. But the younger man threw down the gauntlet in 1930 when he wrote an article in 30 Columbia LR 431 entitled "A Realistic Jurisprudence--the Next Step." In one intemperate footnote Llewellyn decided to "divide up" or classify Pound's work into the following three categories:

"At times the work purports clearly to travel on the level of considered and buttressed scholarly discussion; at times on the level of bedtime stories for the tired bar; at times on an intermediate level, that of the thoughtful but unimproved essay."

His more considered criticism of Pound is that Pound had succumbed to the same conceptualism that he was criticizing in his predecessors. Rather than entering into the "real world" of how law actually worked, Pound was content to stay in the "heaven of generalization" (Hull's term, p. 183).

Making Lists and Responding to Pound

Thus, when Pound came out with his critique of the new brand of realists, without mentioning names, in March 1931, it was necessary for Llewellyn to respond to this in some way. Llewellyn's response, called "Some Realism about Realism: A Reply to Dean Pound," appeared in the next issue of HLR. What Hull does for us, however, to her eternal credit, is to create the frenetic world of the intervening three months (between March and June 1931) and show us what Llewellyn was thinking as he was penning the article. The most fascinating thing she does is to show us the nature of correspondences and meetings Llewellyn had with several law professor colleagues in order to see if they would enter into the fray with him against Pound. All, for one reason or another, decided that he didn't feel particularly singled out by Pound's critique of the new realists in March. Yet, they encouraged Llewellyn (along with Jerome Frank, who had come in for some directly critical words of Pound against him) to make lists of those he would consider to be realists so that who was meant could be established with some kind of accuracy. That is, no one had ever "made a list" of the "realist" jurisprudents, and Llewellyn spent a good deal of time thinking about this question after March 1931. He even corresponded several times with Pound as to whom he would put on the list.

In an April 6, 1931 memo to Pound, Llewellyn made lists of more than forty scholars who might possibly be realists. Llewellyn arranged them in three categories: (1) "Our notion of realists who may have taken extreme positions on one point or another" (in this group were Jerome Frank, Joseph W. Bingham--whom Pound had himself suggested--Underhill Moore, etc; (2) "Our notion of realists who are thorough-going, but probably less extreme in their position" (such as the great contracts scholar Arthur Corbin, Karl Llewellyn himself, Willam O. Douglas, Robert Maynard Hutchins and others); and (3) "Our notions of realists-in-part-of-their-work (which included those like Felix Frankfurther of Harvard, James Landis, Sam Bass Warner and Edmund Morgan--the interim Dean at Harvard at this time, because Pound was off in DC doing work with the Wickersham Commission). What seemed to be behind Llewellyn's list to Pound was the assumption that legal realism was nothing more than a method, a sort of sympathy to social scientific approaches to legal data. By the time the article came out in June 1931, however, the three-tiered list had changed, and Llewellyn listed about 20 names that he tried to define more philosophically than methodologically. But, as Hull says, he wasn't quite successful in this endeavor. She has it:

"While he argued for the methodological definition of realism and was a chief proponent and practitioner of the social scientific, empirical approach all his life, one can sense that Llewellyn wished to stand at the forefront of a coherent legal philosophical movement. His equivocation thus fueled misunderstanding and misinterpretation by contemporary critics and commentators as well as later scholars" (217).

Conclusion

Though many things were occurring in the exchange between Llewellyn and Pound, perhaps the most poignant was the simple psychological one: the ambitious young man, only 37 at the time, would like to elbow the distinguished and established older man, 60 at the time, to the side. A new generation is on the scene; it will define the problems, do the studies, lead the world. Pound was out of date, bogged down as he was with all his reading of German thinkers from the 19th century. Thus, they would say, figuratively speaking, 'It is time for you, Roscoe Pound, to move over and give us some room.' That, I think as much as any "idea," was what was happening. One of the small ironies of all this, however, was that Frank died in the late 1950s, Llewellyn lived a relatively long life for the time (69) and died in 1962, while Pound outlasted them all, dying at age 94 in 1964. As the experience of Thomas Erskine Holland (1835-1926), Oliver Wendell Holmes, Jr. (1841-1935) and Roscoe Pound (1870-1964) show, the secret of being a great legal thinker is to live into your 90s.

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