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Restatement and Reform: A New Perspective on the Origins of the American Law Institute

Published online by Cambridge University Press:  28 October 2011

N. E. H. Hull
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Extract

At the December, 1945, annual meeting of the Association of American Law Schools, William Draper Lewis, who had directed the American Law Institute since its founding, made a startling confession about the founding of the ALI. Everett Fraser, then president of the AALS, had enticed Lewis to speak by complimenting the former University of Pennsylvania Law School dean: “People [at the AALS] talked of a Juristic Center. In the American Law Institute you made it a reality.” There was some truth to this—Lewis was the driving force behind the creation of the ALI. Fraser nevertheless mischaracterized Lewis's achievement. According to an unpublished, recently discovered typescript of Lewis's informal remarks, Lewis chided Fraser, “you know that there is not a word of truth in what [you] said… [because in] doing what I could to establish the American Law Institute, I did not create but rather for the time being killed any attempt to establish a legal center.” Lewis conceded many members of the AALS in the early 1920s “desired to start a Judicial Center conceived of as a place where law professors could meet, usually in the summer, discuss law, carry on legal researches and write legal books.” Lewis claimed he had torpedoed that plan; he had something very different in mind for the ALI “Elihu Root and [I] used this [AALS Committee on a Juristic Center] to summon a group of prominent lawyers to meet with the members of the Committee, and that by the work of that larger group grew the American Law Institute and its Restatement of the Law… it is not true that the American Law Institute is a Juristic Center. It is what Mr. Root and I intended it to be: an organization to carry out specific legal projects for the constructive improvement of the law and its administration.”

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Articles
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Law and History Review , Volume 8 , Issue 1 , Spring 1990 , pp. 55 - 96
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Copyright © the American Society for Legal History, Inc. 1990

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References

Notes

1. This account of Lewis's AALS remarks comes from a carbon typescript Lewis later distributed to a small group of law professors. The copy I found is in the Karl Llewellyn Papers at the University of Chicago School of Law Library, file R.XII.5. The remarks were made at an informal dinner session at the 1945 meeting and were not published in the proceedings of the AALS.

2. Id. The morning after Lewis's remarks, a small group of professors met informally for breakfast in Everett Fraser's hotel suite to discuss the possibility of founding a “true” juristic center independent of the ALI. Attending that meeting and involved in that abortive effort were, in addition to Lewis and Fraser, Merton Ferson, Karl N. Llewellyn, Whitley P. McCoy, Rollin M. Perkins, Maynard E. Pirsig, Warren A. Seavey, and Frank R. Strong.

3. Other manuscript collections used extensively for this paper, some for the first time, include hitherto unused portions of the Roscoe Pound Papers at the Harvard Law School Library, Karl Llewellyn Papers at the University of Chicago Law School Library, the William Draper Lewis Papers at the Archives of the University of Pennsylvania, and the John Henry Wigmore Papers at Northwestern University Library.

4. Most contemporaries' accounts of the founding rely on William Draper Lewis's published recollection of the events. Lewis, History of the American Law Institute and the First Restatement of the Law: ‘How We Did It’ in Restatement in the Courts 1-4 (ALI, 1945). But Lewis's recollections were neither complete nor entirely accurate. Other accounts of some of the founders also oversimplify the events that led up to the founding of the institute, partly because they did not attempt a serious reexamination of the record and partly because they were writing hagiography rather than history. See, e.g., Root, The Origin of the Restatement of the Law, 4 Docket 3575 (Jan. 1933); Corbin, The Restatement of the Common Law by the American Law Institute, 15 Iowa L. Rev. 19 (1929); Goodrich, The Story of the American Law Institute, 1959 Wash, U.L.O. 283 [later revised with Paul Wolkin and published as a separate monograph in 1961]. Later ALI-authored accounts include Wechsler, The Course of the Restatements, 55 A.B.A. J. 147 (1969), and Darrell, & Wolkin, , The American Law Institute, 52 N.Y.S.B.J. 99 (1980)Google Scholar.

Hessel Yntema's 1935 account identifies the AALS's role in the founding, but his review of the AALS proceedings is so superficial that he completely missed what happened in the AALS—who supported the plan for the juristic center and who opposed it. This omission in turn led him to misinterpret the jurisprudence of the active founders. Yntema, The American Law Institute, in Legal Essays in Tribute to Orrin Kip McMurray 657-61 (M. Radin and A. Kidd eds. 1935).

Nearly every subsequent account of the founding of the ALI has relied on one or more of the incomplete and inaccurate contemporary versions and most adopt Yntema's misguided characterization of the founders. Without looking at the manuscript and other unpublished material nor reexamining the published record, these subsequent scholars have overlooked the role of the progressive reformers and exaggerated the role of the conservative formalists in the founding of the ALI. The worst offender is Grant Gilmore. See G. Gilmore, Ages of American Law 84 (1977) and idem, The Death of Contract 67–69, and 131 n.156 (1974). Gilmore's fanciful account of American legal history particularly regarding the ALI and the political ideology and jurisprudence of William Draper Lewis is as egregiously inaccurate as his account of the Pound-Llewellyn realist controversy. See Hull, Some Realism About the Llewellyn-Pound Exchange Over Realism: The Newly Uncovered Private Correspondence, 1927–1931, 1987 Wis. L. Rev. 921, 924 n.14, 936 n.108, 937 n.112. Even serious legal historians, however, have accepted the standard account. See Friedman, L., A History of American Law 676 (2d ed. 1985)Google Scholar; Purcell, E., The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value 80 (1973)Google Scholar; and Schlegel, , American Legal Realism and Empirical Social Science: From the Yale Experience, 28 Buffalo L. Rev. 469, 517 n.291 (1979)Google Scholar. The most recent account of the founding of the ALI makes many of the same errors. LaPiana, , ‘A Task of No Common Magnitude’: The Founding of the American Law Institute, 11 Nova L. Rev. 1085 (1987)Google Scholar.

5. On the historical development of progressive-pragmatism and its influence on American jurisprudence, see N. E. H. Hull, Pound and Llewellyn: Consensus and Conflict In the Formative Era of American Jurisprudence, work in progress.

6. Pound, , The Causes of Popular Dissatisfaction with the Administration of Justice, 29 A.B.A. REP. (pt. I) 395–417 (1906)Google Scholar. While Oliver Wendell Holmes's anti-formalist utterances in The Common Law and “The Path of the Law,” in 10 Harv. L. Rev. 457 (1897)CrossRefGoogle Scholar, preceded Pound's speech and intellectually influenced Pound and others of his progressive-pragmatist generation, they did not incite them to active jurisprudential rebellion. Holmes, an anomaly in his own generation, rejected formalism but was too cynical to be a progressive. For a more detailed description of Pound's talk, the debate that followed it, and its implications for the development of modern American law and jurisprudence, see Hull, The Restatement of the Law that Never Was: From Formalism to Progressive-Pragmatism in American Jurisprudence, 1889–1923, forthcoming article.

7. Hull, supra note 6.

8. I use the Kuhnian paradigmatic model cautiously. T. Kuhn, The Structure of Scientific Revolutions (2d ed. 1982). Schlegel, responding to a suggestion of Robert Gordon, argues that “the progressive reform tradition is not so fully formed to quality as a paradigm and I doubt whether constructs of social reality change in the way Kuhn suggests that scientific paradigms do….” Schlegel, supra note 4, at 517 n. 291. I agree with Schlegel that progressive reform was a legitimate “tradition” as a historical phenomenon, but I would argue that does not invalidate the Kuhnian model for explaining changes in American jurisprudential thought. The development and intellectual history of scientific thought is much more closely related and analogous to the development of legal thought than to the historical development of social or political movements. Michael Hoeflich effectively demonstrates the value of Kuhn's paradigm to explain the evolution of jurisprudential legal science to the classicalformalist era. Hoeflich, , Law & Geometry: Legal Science from Leibniz to Langdell, 30 Am. J. Legal Hist. 95 (1986)CrossRefGoogle Scholar.

9. The account of what transpired is taken from John Henry Wigmore's memoir of the event. Wigmore, , Roscoe Pound's St. Paul Address of 1906: The Spark that Kindled the White Flame of Progress, 20 J. Am. Jud. Soc'y 176 (1937)Google Scholar.

10. See Hull, supra note 6.

11. For a clear explanation of formalism and “classical orthodoxy” see Thomas Grey's excellent article, Langdell's Orthodoxy, 45 U. Pitt. L. Rev. 1 (1983)Google Scholar. For a direct jurisprudential contrast between the formalist legal scientists who dominated the American Bar Association Committee on Restatement Classification of the Law and their very different, progressive-pragmatic counterparts—the ALI founders—see Hull, supra note 6.

12. Wigmore, supra note 9, at 177. George Boke would also play a critical role in the founding of the ALI.

13. Id. at 178.

14. P. Sayre, The Life of Roscoe Pound 137–60 (1948).

15. Lewis, , Legal Education and the Failure of the Bar to Perform its Public Duties, 6 AALS Handbook 32–49 (1906)Google Scholar.

16. Letter from John Henry Wigmore to William Draper Lewis (November 9, 1942) (ALI Archives, folder 7).

17. Hohfeld, , A Vital School of Jurisprudence, 14 AALS Handbook 76, 77, 136 (1913–1916)Google Scholar. Over the years Hohfeld's reputation has been defined by and limited to his contribution to abstract, analytical jurisprudence through his schema of jural relations. As the following analysis of his address to the AALS points out, Hohfeld was actively concerned with reform of the law and no doubt, had he lived, he would have translated his jurisprudential ideas into a reformist program, very probably through the ALI. Hohfeld's reputation as an abstract theorist has led subsequent scholars to overlook the strong, practical reformist objective of Hohfeld's AALS plan. See Schlegel, supra note 4, at 475 n.86.

18. Id. at 81–82.

19. Id. at 108.

20. Id. at 88.

21. Letter from Wesley Newcomb Hohfeld to Roscoe Pound (September 24, 1912) (Pound Papers, Box 223, file 7, Harvard Law School Library). The restatement project Hohfeld was referring to was the one promoted by James DeWitt Andrews. For the detailed story behind the Corpus Juris project and Wigmore's role in opposing it, see Hull, supra note 6.

22. Ordinarily, after a speaker finished his talk, the president of the association would ask for questions and comments and the minutes often indicated some lively reaction to the preceding address. Here, the Handbook only notes that Hohfeld gave his talk and that there were some unrecorded comments by Dean Eldon James of Missouri. 14 AALS Handbook 5 (1913–16).

23. Richards, , Progress in Legal Education, 15 AALS Handbook 60 (1915)Google Scholar.

24. Id. at 75–76.

25. Id. at 27.

26. Id. at 28–29.

27. Id. at 30. The other members would be appointed later by Richards. Id. at 31.

28. 16 AALS Handbook 91 (1916).

29. The debates over accreditation of night or part-time law schools and their “inferior” curriculum, particularly the use of adjuncts rather than professional law professors, and whether the case method of study should be required run through the AALS meetings in these early years. See the AALS Handbooks for 1910–16. R. Stevens, Law School 100–103 (1984) and J. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America 102 (1976) also discuss the furor over standards in legal education and admission to the bar during this period and the nativist attitudes that generated concern.

30. Beale, , The Necessity for a Study of Legal System, 14 AALS Handbook 33–34 (1913–1916)Google Scholar.

31. Richards, supra note 23, at 63.

32. Nevertheless, the AALS was moving, for a complex mixture of reasons including Richards's and Beale's protests, to discredit the night law schools. R. Stevens, supra note 28, at 98–99. The ABA was dominated by the corporate bar. See J. Auerbach, supra note 29, at 102–29.

33. Boke's last-minute letter to Wigmore to read his report, however, arrived while Wigmore was out of town and so Wigmore's colleague George Costigan presented the report in his stead. 16 AALS Handbook 92, 183–84 (1916). Ever since the separation of the AALS as an independent organization distinct from the ABA in 1900, there had been arguments about how closely the two should work together and whether the AALS should again merge with the ABA's Section on Legal Education. At the 1914 AALS meeting, Lewis suggested that “the time has now come to substitute for the Legal Section of the American Bar Association this Association, and to identify ourselves as an integral part of the American Bar Association….” His recommendation garnered no support from the other members at the meeting. 14 AALS Handbook 28 (1913–16). Actually Lewis attributed this suggestion to Richards during the discussion following Richards's presidential address, but Lewis was wrong. Richards, rather than suggesting to make the AALS a section of the ABA, had actually recommended that the ABA discontinue its section and cede the area of legal education to the independent AALS. Id. at 61. Richards sought less rather than more involvement between law professors and practitioners and saw little connection between the teaching of law and its practice.

34. Id. at 182, 184.

35. See the accounts of the ALI's founding cited supra note 4 and P. Sayre, supra note 14, at 215.

36. 16 AALS Handbook, supra note 33, at 94.

37. Id. at 95.

38. Dean Wigmore, for example, resigned his academic position to serve in the army's Judge Advocate General's office during the war's duration. Wigmore also strongly supported the prosecution of political dissenters after the war. R. Polenberg, Fighting Fathers: The Abrams Case, The Supreme Court, and Free Speech 249-56 (1988); and W. Roalfe, John Henry Wigmore: Scholar and Reformer (1977).

39. J. Auerbach, supra note 29, at 102.

40. R. Wiebe, Search for Order, 1877–1920, at 286–88 (1967); S. Rochester, American Liberal Disillusionment in The Wake of World War I 88–150 (1977); A. Waskow, From Race Riot to Sit-In: 1919 and The 1960S 12–174 (1966); H. Pelling, American Labor 136–41 (1960); J. Addams, Twenty Years at Hull-House 276–93 (repr. 1960); Chambers, , The Campaign for Women's Rights in the 1920's, 457–78 in Our American Sisters: Women in American Life and Thought (J. Friedman & W. Shade 3d ed. 1982)Google Scholar; E. Flexner, Century of Struggle: The Women's Rights Movement in The United States 306–24 (1974).

41. 6 A.B.A. J. 15 (1920).

42. Id. at 16.

43. Id. at 3.

44. Id.

45. R. Murray, Red Scare: A Study of National Hysteria, 1919–1920 (1964).

46. National Popular Government League, facsimile reprinted in Mass Violence in America (R. Rubenstein & R. Fogelson eds. 1969).

47. Freund, Pound, Chafee, and Williams as well as the lawyer Alfred S. Niles were all ALI members and founders.

48. The first meeting of the AALS following the war took place the year before. The political and legal tensions of late 1919 and early 1920 had not yet intruded upon the academics and so the three-year old motion about a national juristic center was not revived that year. Instead the professors debated the AALS's relationship to the ABA Section on Legal Education, whether to institute a four-year curriculum, relax the standards for admission for returning veterans, and the perennial question of the accreditation of night law schools. 17 AALS Handbook 40–60, 64–67, 70–82 (1919). Gilmore's address is found in 18 AALS Handbook 140–56 (1919–21).

49. Id. at 146, 147, 153. Gilmore denied that he and his colleagues who urged that the law professors take the lead in reform claimed any intellectual superiority: “Those who would lay upon the law teachers the task of law adaptation, improvement and reform do not thereby claim for them any superiority of capacity over the practitioner.”

50. See Hull, supra note 6.

51. Taft, Possible and Needed Reforms in the Administration of Justice in Federal Courts, 47 A.B.A. Rep. 250, 32–33 (1922).

52. Id. at 32–33, 154–55. Gilmore knew that Corbin, a reformer himself, would strongly support the proposal. See L. Kalman, Legal Realism at Yale 98–107 (1986).

53. 18 AALS Handbook 76 (1919–21).

54. Beale, the foremost expert in the field of conflict of laws, was chosen as chief reporter for that part of the Restatement. But his strict and outdated formalist approach was rejected by his fellow restaters and he was ultimately ousted, to be replaced by the clearly progressive-pragmatic Herbert Goodrich. See Goodrich, Institute Bards and Yale Reviewers, 86 U. Pa. L. Rev. 449, 456–57 (1936).

55. See note 4 and accompanying text.

56. 19 AALS Handbook 6 (1921).

57. The majority report and the dissent by James P. Hall appeared in the program distributed in advance of the meeting. Subsequent events described below made the two reports obsolete and so they were omitted from the published proceedings of the meeting. Extant copies of the original program are rare. Most law libraries' collections contain only the final published proceedings. Even the AALS's headquarters had no copies of these early materials. Serendipitously, while researching in the Karl Llewellyn Papers, I found that the University of Chicago law library kept the programs of the meetings and bound them with the proceedings. I am very grateful to the library and its staff for helping me locate this rare material. AALS Program and Reports of Committees 13 (19th Annual Meeting, 1921).

58. H. Goodrich & P. Wolkin, The Story of The American Law Institute, 1923–1961, at 6 (1961).

59. Letter from William Draper Lewis to Adolph J. Rodenbeck (June 27, 1944) (ALI B58–9); Hull, supra note 6.

60. Lewis described himself as such in his 1944 “Off-The-Record Remarks” at the ALI's annual dinner. These were privately printed and distributed by the ALI to its members. The particular copy I saw was the one sent to Samuel Williston and is now part of the collections of the Harvard Law School library. A slightly different version of these same “remarks” can be found in the ALI Archives, 56–2.

61. 19 AALS Handbook 14 (1921).

62. Id.

63. Id. at 115, 116.

64. Id. at 117.

65. Corbin gave his own account of Cardozo's Storrs Lectures and the judge's subsequent address to the AALS in Corbin, The Judicial Process Revisited: Introduction, 71 Yale L.J. 195, 198 (1961).Google Scholar

66. Indeed, after Cardozo spoke, Judge Orrin Carter, of the Supreme Court of Illinois, addressed the visiting convention in just such a style. 19 AALS Handbook 117, 121–23(1921).

67. Id. at 117.

68. Id. at 119.

69. See text at p. 77, infra.

70. 19 AALS Handbook 121, 123 (1921).

71. Lewis, supra note 4, at 1.

72. See text at p. 66, supra.

73. 2 P. Jessup, Elihu Root 471 (1938).

74. Lewis, supra note 60, at 2–4.

75. Id. at 3–4.

76. Root had served as president of the ABA and of the Conference of State and Local Bar Associations; his contacts within the community were extensive. J. Rogers, American Bar Leaders, 1878–1928, at 184–87 (1932). On Root's public career see 1 & 2 P. Jessup, supra note 73, passim.

77. 2 P. Jessup, supra note 73, at 468, 470.

78. 1 ALI Proceedings [Part Two] 4.

79. The minutes of these meetings were kept private and have never before been published. Only the briefest account of the first meeting was printed. The ALI staff were unaware that any of the minutes of these early meetings were extant. A professional archivist in the early 1970s had informed the ALI that these early papers had been destroyed in the flooding of the basement of the old ALI offices. I found the typewritten minutes of the first meeting of the POC and the first and second executive committee meetings in a file cabinet in the ALI warehouse. I moved these (and several other papers referred to in this essay) from the warehouse to the ALI library, where I gave letter or number designations to various file folders. These are all stored in a box with my name on it. The minutes for all three meetings are in file folder “A.”

The minutes also reveal the names of several invitees who cabled that they were interested in the organization but could not arrange to attend the May 10 meeting: Charles A. Boston, a New York Lawyer and ethics expert; Judge Benjamin N. Cardozo (no surprise after his appearance at the AALS meeting the previous December); Frederic René Coudert, name partner in the Coudert Brothers firm in New York and scion of the old pre-Revolutionary War family, as well as an Oyster Bay neighbor and ex-Spanish-American War colleague-veteran of Theodore Roosevelt; William D. Guthrie, the noted ultra-conservative corporate and constitutional lawyer and, from 1913–22, Ruggles Professor of Constitutional Law at Columbia University; Barry Smith, a New York social worker and general director of the Commonwealth Fund; and Charles Strauss, president of the New York County Lawyer's Association and successful real estate developer.

80. See text at p. 80, infra.

81. ALI, Minutes of the First Meeting of the Committee on the Establishment of a Permanent Organization, May 10, 1922, at 2, ALI Archives, folder “A,” [hereafter cited as POC Minutes of May 10].

82. Id. at 4.

83. Lewis phrased the question in more general terms, but this was clearly what he and the committee meant. Id.

84. POC Minutes of May 10, supra note 81. The article Lewis referred to is Salmond, The Literature of the Law, 22 COLUM. L. REV. 197 (1922).

85. Wigmore, The Terminology of Legal Science (With a Plea for the Science of Nomo-Thetics), 28 Harv. L. Rev. 1 (1914); Hohfeld, , Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913)CrossRefGoogle Scholar. Joseph Singer traces the pedigree of Hohfeld's analytical schema back to the earlier work of Salmond and another late nineteenth-century American jurisprudent, Henry Terry, though Singer convincingly argues that Hohfeld was, unlike Salmond and Terry an anti-conceptualist analytical jurisprudent. Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 Wis. L. Rev. 975, 1049–1059 (1982).

Henry Terry, incidently, played a crucial role in the history of the ABA Committee project and sent his “Classification of the Law” article to Roscoe Pound when he read that Pound had taken charge of the ALI's Committee on Classification and Terminology. Letter from Henry Terry to Roscoe Pound (July 9, 1923) (Pound Papers, 236–1). Pound didn't think much of Terry's article and called it “hopelessly prolix.” Letter from Roscoe Pound to William Draper Lewis (July 3, 1924) (Pound Papers, 235–5). On Pound's work on classification and terminology see note 90 infra and N. E. H. Hull, The New Jurisconsults: The American Law Institute and The Transformation of American Law in The Twentieth Century, work in progress. For a detailed examination of Terry's role in the ABA committee's project see Hull, supra note 6.

86. Immediately after Hohfeld's death, Corbin and Walter Wheeler Cook published two important articles reevaluating Hohfeld's analytical jurisprudence. Corbin, , Legal Analysis and Terminology, 29 Yale L.J. 163 (1919)CrossRefGoogle Scholar and Cook, , Hohfeld's Contributions to the Science of Law, 28 Yale L.J. 721 (1919)CrossRefGoogle Scholar. At its annual meeting the following year, the AALS sponsored a symposium on “Terminology and Classification in Fundamental Jural Relations,” in which Corbin, Albert Kocourek, and William Herbert Page debated Hohfeld's schema. For a comprehensive discussion and bibliography of the “Hohfeldian Debate” of the 1920s and '30s (indeed, up to the present), see Singer, supra note 85, at 989–93. Immediately following Hohfeld's death, the Yale professor was revered as an American genius of legal philosophy. When the Enclyclopedia of the Social Sciences was being written in the 1920s, for instance, Hohfeld appeared on the list of American legal writers about whom major essays would be written. He was the only modern writer included with the likes of Jefferson, Story, Langdell, and Thayer. Letter from Alvin Johnson to Roscoe Pound (March 5, 1929) (Pound Papers, 13–9). George Farnum, writing about Hohfeld's influence on the terminology of the ALI's restatement (then in progress), called Hohfeld's “untimely death… a real tragedy to the cause of legal science….” Farnum, , Terminology and the American Law Institute, 13 B.U.L. Rev. 203 (1933)Google Scholar.

87. POC Minutes of May 10, supra note 81, at 4.

88. Id.

89. I agree with the conclusion in Nathan Crystal's excellent article that the restaters were sympathetic to the goals of codification and that the restatement's form was a quasi-code. Crystal, Codification and the Rise of the Restatement Movement, 54 Wash. L. Rev. 239 (1979)Google Scholar. While some individuals who attended the founding meeting opposed codification and expressed reservations that an ALI restatement might be considered a model code of the common law intended for legislative enactment, most of the active founders and early restaters had long supported codification through their work with the NCCUSL.

On the Model Penal Code see Wechsler, , Codification of Criminal Law in the United States: The Model Penal Code, 68 Colum. L. Rev. 1425 (1968)CrossRefGoogle Scholar; on the uniform legislative purpose of the Uniform Commercial Code see UCC Article 1 Section 102 and Official Comment; on the history of the ALI-ABA Committee on Continuing Professional Education and its publications see P. Wolkin, ALI-ABA … XL! (1988).

90. The purpose and scope of the work of this short-lived committee is discussed in the “Statement by the Council of the American Law Institute to the Carnegie Corporation” [not dated but probably written shortly after the ALI founding meeting in late February or early March, 1923], ALI Archives, folder “A.” In reality, the “committee” was Pound who ultimately submitted a report on classification that he later published. Pound, Classification of Law, 32 Harv. L. Rev. 933 (1924)Google Scholar. Pound's report and article deal only with the question of ways to classify various branches of law; it does not address the question of what terminology the ALI should use to describe different legal relationships. Pound started but did not complete a second report dealing with terminology. He did consult extensively with Francis Bohlen, the reporter for the Restatement of Torts, and with Lewis about the proposed terminology for the restatements. Pound Papers, 235–5.

91. Farnum, supra note 86, at 204–14. At the time Farnum wrote his article, much of the restatement had yet to be completed. Farnum noted from the drafts, text of those sections that were published, and from comments at meetings that certain reporters were more enamored of Hohfeld's terminology than others, but that at least some of Hohfeld's schema had been adopted by nearly every restater.

92. POC Minutes of May 10, supra note 81.

93. Id. at 7.

94. The rest of the May 10 organizational meeting was devoted to the discussion of four resolutions moved by Lewis that would empower the executive committee to act for the larger POC to effect its objectives. The most important of these concerned the solicitation of funding. The meeting of the POC concluded with a recommendation by Root that Charles A. Boston, Benjamin Cardozo, William D. Guthrie, Learned Hand, Julian W. Mack, and Roscoe Pound be invited to join the committee. Id.

95. ALI, Minutes of the First Meeting of the Executive Committee on the Establishment of a Permanent Organization for the Improvement of the Law, ALI Archives, folder “A” [hereafter cited as Executive Committee Minutes of May 10].

96. Actually, they also planned to formally approach the Commonwealth Fund, but as we have seen they were unsuccessful.

97. The final item of business was a resolution to have Lewis order one thousand copies of Sir John W. Salmond's Columbia Law Review article to distribute to each member of the Permanent Organization Committee as well as to each of the officers of the Carnegie Corporation and the Commonwealth Fund.

98. The first item on the executive committee's agenda was to hear from W. Thomas Kemp, secretary of the American Bar Association. Kemp outlined for the new group the ABA's thirty-three year effort on law clarification and restatement. Kemp's message was clear: The ABA committee had already staked-out a claim on the work of restating the law. On the fate of the ABA committee see Hull, supra note 6.

99. There was some doubt as to whether Bates could serve, and the committee chose as an alternate Orrin Kip McMurray, dean of the University of California School of Jurisprudence in Berkeley.

100. There is no copy of the agenda with its interrogatories extant in the ALI archives. I found the copy quoted here in the Pound Papers, 235–5, Harvard Law School Library. Pound himself was unable to attend the meeting because he was, in fact, at the time of the Cambridge conclave on a ship sailing home from Europe. McCarthy [secretary to Dean Pound] to Lewis, (June 9, 1922) (Pound Papers, 235–5). The following account is based upon the agenda and a Report of the Reporters to the Executive Committee, November 30, 1922, ALI Archives, folder “A” and the Hasty Notes of Charles A. Boston [a member of the POC and a participant at the Cambridge meeting] in Answer to Interrogatories in [the] Suggested Agenda for the Cambridge Meeting of Reporters, Critics, Invited Guests and Members of the Committee (1922), tyewritten manuscript at Harvard Law School Library (Wambaugh Estate).

101. Letter from William Draper Lewis to Roscoe Pound (May 18, 1922); Pound to Lewis (June 12, 1922) (Pound Papers, 235–5).

102. The contradictory perspectives of formalist simplification and explicit reform in the final report were later commented upon by Clark, Charles E., Clark, , The Restatement of the Law of Contract, 42 Yale L.J. 643, 644, 644 n.3 (1933)CrossRefGoogle Scholar.

103. Boston, supra note 100, at 1–2.

104. Report of the Committee on the Establishment of a Permanent Organization for the Improvement of the Law Proposing the Establishment of an American Law Institute, (February 23, 1923) 1 ALI Proceedings [Part One], 1.

105. Boston, supra note 100, at 2.

106. Report, supra note 104, at 44.

107. Id. at 29.

108. Lewis, supra note 60, at 11. Lewis admits that Samuel Williston was responsible for placing the recommendations in the front of the report and moving the section on the causes for uncertainty in law to part two.

109. Report, supra note 104, at 29. As such, the report, and with it, the concept behind the ALI, was hardly “formalist.”

110. Id. at 14.

111. Some of the practitioner-founders were undoubtedly similarly motivated, but these sentiments had been quite explicitly expressed at the AALS meetings and were not evident in the extant comments we have of practitioners prior to the Washington, D.C. meeting of 1923. Some practitioners at that latter meeting, Herbert Spencer Hadley for example, did openly express similar sentiments and I cover them in the book.

112. See note 4 supra.

113. See, e.g., the able summaries in Caine, The Origins of Progressivism in The Progressive Era 11–34 (L. L. Gould ed. Syracuse, 1974); McCormick, R. L., Progressism, A Contemporary Reassessment in The Party Period and Public Policy, American Politics from the Age of Jackson to the Progressive Era 268–87 (New York, 1986)Google Scholar; and Mowry, G. E., The Progressive Era, 1900–1920, The Reform Persuasion (Washington, D.C., 1958)Google Scholar.

114. On Lewis's political career, see Box 947, folder 3, William Draper Lewis Papers, University of Pennsylvania Archives. Lewis's liberal reformist impulses continued throughout his life and influenced the direction of the ALI for twenty-five years. See HULL, supra note 85.

115. See, e.g., C. S. Peirce, What Pragmatism Is, 15 THE MONIST 161–81 (1905) and idem., Issues of Pragmatism, 15 The Monist 481–99 (1905). Pierce had developed the theory in the 1870s, and its influence spread widely in academia, though Peirce, for personal reasons, never quite found a home there. See Moore, E. C., American Pragmatism, Peirce, James, and Dewey (New York, 1961)Google Scholar, and White, M., Pragmatism and the American Mind, Essays and Reviews in Philosophy and Intellectual History (New York, 1973)Google Scholar.

116. Dewey, J., The Quest for Certainty, A Study of the Relation of Knowledge and Action 286 (1929, repr. New York, 1960)Google Scholar.

117. Rosenblatt, , Legal Theory and Legal Education, 79 Yale L.J. 1153 (1970)Google Scholar. The late Edward J. Bloustein demonstrated the influence of pragmatism on Holmes's own jurisprudence in his recent article, Holmes: His First Amendment Theory and His Pragmatist Bent, 40 Rutgers L. Rev. 283 (1988)Google Scholar but correctly does not attribute a progressive impulse to Holmes.

118. I ALI Proceedings [Part Two] 7, 8–19, 88.

119. N.Y. Times, Feb. 24, 1923, at 10, col. 8.

120. Lewis, supra note 1.

121. Lewis was also disingenuous when he denied that the ALI served as the focus of summertime gatherings of law professors to discuss and argue subtle legal doctrine. During the years of Lewis's directorship, the restaters regularly assembled at Lewis's family compound in Northeast Harbor, Maine, to do just that.