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“Warn Students That I Entertain Heretical Opinions, Which They Are Not to Take as Law”: The Inception of Case Method Teaching in the Classrooms of the Early C. C. Langdell, 1870–1883

Published online by Cambridge University Press:  28 October 2011

Bruce A. Kimball
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Extract

Christopher Columbus Langdell (1826–1906) was perhaps the most influential figure in the history of legal education in the United States. He shaped the modern law school by introducing a number of significant reforms during his tenure as dean of Harvard Law School (HLS) from 1870 to 1895. Indeed, Langdell may well be the most influential figure in the history of American professional education because he established at HLS, with the help of President Charles W. Eliot, the model for twentieth-century professional schools. His innovations—such as minimum academic standards for admission to degree candidacy, a graded and sequential curriculum, minimum academic standards for continuation in a degree program, a professorial career track for faculty members, and the transformation of the library from a textbook repository into a scholarly resource—became the norm to which leading law schools, medical schools, and, finally, schools of other professions in the twentieth century aspired. Among these changes, none is more closely associated with Langdell than the introduction of case method teaching.

Type
Forum. That Impecunious Introvert from New Hampshire: Re-Imagining Langdell
Information
Law and History Review , Volume 17 , Issue 1 , Spring 1999 , pp. 57 - 140
Copyright
Copyright © the American Society for Legal History, Inc. 1999

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References

1. By the end of Langdell's deanship this potential influence was already evident to Eliot, who observed that the reforms at HLS “will have made a valuable contribution to the better organization of professional instruction in the United States,” if the HLS student body remained relatively large. Eliot, Charles W., Annual Reports of the President and the Treasurer of Harvard College, 1893-94 (Cambridge: Harvard University, 1895), 23Google Scholar. See also Kimball, Bruce A., The “True Professional Ideal” in America: A History (Oxford: Basil Blackwell, 1992), 198–300.Google Scholar

2. William P. LaPiana has provided the most detailed and informed acccount of these developments at Harvard. LaPiana, , Logic and Experience: The Origin of Modern American Legal Education (New York: Oxford University Press, 1994)Google Scholar. See, too, Stevens, Robert, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill: University of North Carolina Press, 1983), 35–72.Google Scholar

3. I follow here the dominant view, rather than the minor historiographical tradition maintaining that Langdell's case method was not an innovation. Space does not permit a rebuttal to this minor tradition, which has generally been advanced either by contemporaries who disparaged Langdell's method or by subsequent observers who sought to foster the pejorative view of Langdell described below.

4. Morton Horwitz thus takes the inaugural year of Langdell's deanship, 1870, as the starting point for the reign of “legal orthodoxy” in American jurisprudence. Horwitz, Morton J., The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992)Google Scholar.

5. See Grey, Thomas C., “Langdell's Orthodoxy,” University of Pittsburgh Law Review 45 (1983): 1–53Google Scholar.

6. See Robert W. Gordon, “The Elusive Transformation,” review of The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy, by Horwitz, Morton J., Yale Journal of Law & Humanities 6 (1994): 137–39.Google Scholar I am grateful to Daniel R. Ernst for bringing this helpful reference to my attention.

7. [Holmes, Oliver Wendell Jr], [Review of] A Selection of Cases on the Law of Contracts… by C. C. Langdell… [and] Principles of the English Law of Contract. By Sir William R. Anson,” American Law Review 14 (1880): 234Google Scholar.

8. Frank, Jerome, “Why Not a Clinical Lawyer-School,” University of Pennsylvania Law Review 81 (1933): 907.CrossRefGoogle Scholar

9. Gilmore, Grant, The Death of Contract (Columbus: Ohio State University Press, 1974), 13.Google Scholar

10. These words of Grant Gilmore are quoted affirmatively in Hoeflich, Michael H., “Law & Geometry: Legal Science from Leibniz to Langdell,” American Journal of Legal History 30 (1986): 121, n. 100CrossRefGoogle Scholar.

11. Batchelder, Samuel F., “C. C. Langdell, Iconoclast,” Bits of Harvard History (Cambridge: Harvard University Press, 1924), 318, n. 1Google Scholar. The article first appeared in The Green Bag 18 (1906)Google Scholar.

12. Warren, Charles, History of the Harvard Law School and of Early Legal Conditions in America (New York: Lewis Publishing, 1908), 2:372–74Google Scholar.

13. Batchelder, “C. C. Langdell, Iconoclast,” 303-23. See above, note 11.

14. Wiener, Philip P., Evolution and the Founders of Pragmatism (Cambridge: Harvard University Press, 1949Google Scholar; Philadelphia: University of Pennsylvania Press, 1972), 232, 235, n. 2.

15. Gilmore, The Death of Contract, 14.

16. See File of “Letters Received regarding Dean Ames, 1925-1926,” Box 1, The Francis S. Philbrick Papers, Harvard University Archives. These letters were collected by Professor Francis S. Philbrick of the University of Illinois who in 1925 and 1926 wrote to about sixty-seven prominent HLS alumni, asking their opinion of the teaching of Langdell and Ames. Philbrick received replies from forty-six and compiled excerpts from the letters in a mimeographed pamphlet entitled, “Extracts from Letters by Onetime Students under Langdell and Ames, Relative to the Attitude of Those Teachers toward the Law,” which he circulated in 1926. In 1936 Philbrick sent his entire file to Roscoe Pound, Dean of HLS, who passed it on to the library, where it was boxed and filed. I am grateful to David deLorenzo, Curator of Manuscripts and Archives, HLS Library, who told me of the file and of his belief that it had not been read prior to 1996 by any scholar working on Langdell.

17. Clarke B. Whittier, Letter to Francis S. Philbrick, 10 December 1925, Box 1, Phil-brick Papers.

18. See Speziale, Marcia, “Langdell's Concept of Law as Science: The Beginning of Anti-formalism in American Legal Theory,” Vermont Law Review 5 (1980): 1–37Google Scholar; Chase, Anthony, “The Birth of the Modern Law School,” American Journal of Legal History 23 (1979): 329–48CrossRefGoogle Scholar, and “Origins of Modern Professional Education: The Harvard Case Method Conceived as Clinical Instruction in Law,” Nova Law Journal 5 (1981): 323–63Google Scholar; Carrington, Paul D., “Hail! Langdell,” Law & Social Inquiry 20 (1995): 691–760CrossRefGoogle Scholar. The most informed and significant work in this regard is LaPiana's, Logic and Experience.

19. John Henry Schlegel, review of The Lost Lawyer, by Anthony Kronman, and Logic and Experience, by LaPiana, William P., Law and History Review 14 (1996): 369Google Scholar.

20. LaPiana expresses appreciation for Langdell in an “Epilogue,” whose tone does not seem fully concordant with that in the body of the book. LaPiana, Logic and Experience, 168-70. Likewise, Carrington seems to honor Langdell by way of apologizing for him in “Hail! Langdell,” 691-760. Anthony Chase is the exception in arguing, based upon Langdell's published writings, that Langdell's approach to case method was virtually the “opposite” of the way it has conventionally been portrayed, particularly by Gilmore. “Origins of Modern Professional Education,” 359.

21. Langdell, , A Summary of Equity Pleading, 2d ed. (Cambridge: Charles W. Sever, 1883), ivGoogle Scholar.

22. Blewett Lee, Letter to Francis S. Philbrick, 18 February 1926, Box 1, Philbrick Papers.

23. Warren, History of the Harvard Law School, 2:460n.

24. James Barr Ames, “Christopher Columbus Langdell,” (1909), reprinted in Ames, , Lectures on Legal History and Miscellaneous Legal Essays (Cambridge: Harvard University Press, 1913), 474–76Google Scholar.

25. The Centennial History of the Harvard Law School, 1817-1917 (Cambridge: Harvard Law School Association, 1918), 311Google Scholar.

26. “Christopher Columbus Langdell 1826-1906.” Unpublished typescript distributed by Reference Desk, Harvard Law School Library, [1996], 2p.

27. Full citations to Langdell's works are given in Appendix I. Short titles are employed in this text and these notes.

28. In fact, Langdell and Ames produced the only casebooks in use at HLS until the academic year 1888-89, when John Chipman Gray and William A. Keener introduced their respective casebooks on property and quasi-contracts.

29. Those three courses were “Suretyship and Mortgage,” employing no textbook; “Jurisdiction and Procedure in Equity,” using his Cases in Equity Pleading (1878); and “Jurisdiction and Procedure in Equity,” using his Cases on Equity Jurisdiction (1879-1883) until 1890.

30. To my knowledge, this co-teaching was unprecedented in the history of American colleges and universities.

31. LCon70, 215, 234, 306, 354, 402. These glosses seem to refer to lengthy annotations in ACon71 that summarize doctrine and list full citations of between ten and thirty relevant cases.

32. ACon71 and LCon70, 12, 17, 23-25, 47, 380, 381, 411, 418. A note on a small piece of paper glued to the foot of a page appears to be in Ames's handwriting, suggesting that he may have used Langdell's copy in his teaching of “Contracts” in the mid-1870s (LCon70, 42). It is also possible that similar underlining in blunt, red pencil in both copies was done by one or the other.

33. See LEq75 and AEq2, 127, 151, 160, 178.

34. See Appendix III.

35. James P. Hall, Letter to Francis S. Philbrick, 8 December 1925, Box 1, Philbrick Papers.

36. Learned Hand, Letter to Francis S. Philbrick, 17 February 1926, Box 1, Philbrick Papers.

37. In private correspondence, Eliot wrote that, in his forty-year tenure as president, “the putting of Langdell in charge of the Law School was the best piece of work I did for Harvard University, except the reconstruction of the Medical School in [18]70 and [18]71, and the long fight for the development of the elective system.” “Letter to Henry S. Pritchett,” 13 April 1915. Correspondence of Charles W. Eliot, Small Manucript Collection, Harvard Law School Library.

38. The names and dollar sums are dated from May 1877 through June 1879 (v. 1, leaf 109). No connection between these figures and the text is apparent, so it seems that Langdell, in the late 1870s, wanted to tally some figures (with corresponding names and dates), grabbed this notebook with blank pages left, worked out the tally once ($21,300), crossed it out, wrote down the entire list of figures, and reworked the result, arriving at the correct sum of $25,350. The sums are considerable, too large to pertain to debts of HLS students, who do not fit the list of names in any case; and it is intriguing to infer that the sums, with names and dates, may refer to investments or to legal practice that Langdell did on the side. Eliot observed that Langdell prospered financially due, in part, to his knowledge of “farm mortgages in Iowa and other fertile Western states.” Eliot, Charles W., “Langdell and the Law School,” Harvard Law Review 33 (1919-1920): 524Google Scholar. It is noteworthy that Langdell also glossed this notebook. He refers to “suretyship” in a note added to the back of v. 2, leaf 42; and, in a different pen, to “an action on a promissory note” on the back of v. 2, leaf 46. Since he taught these subjects subsequently, he probably went back to this notebook.

39. This date follows from the fact, first, that Langdell taught Partnership only during that semester. Furthermore, Langdell frequently quotes from “Lindley,” giving page numbers; and my investigation reveals that these quotations and page numbers fit only the second, 1867 edition of Lindley, Nathaniel, A Treatise on the Law of Partnership…, 2 vols. (Philadelphia: T. & J. W. Johnson, 1860)Google Scholar. Since there appeared a third (1873) and subsequent editions, the dating of the lectures from 1870 correlates appropriately with the interval between Lindley's second (1867) and third (1873) editions. Also, at one point Langdell seems to refer to a student in class: “Notice the… case mentioned by Mr. Mansfield at the last lecture” (v. 1, leaves 70-71). Among the four Mansfields who attended HLS before 1934, Langdell's teaching of Partnership correlates perfectly with Ex. Sumner Mansfield, who attended HLS only during 1869-70. Finally, Langdell also refers to another student, whose name appears to be “Mr. Ayres” and who “in regard to drawing bills in London or New York… informs me that Brown, Shipley & Co. will draw them… for small amounts” (v. 2, leaves 54, 55). This reference fits perfectly with Russell W. Ayres of New York, who also attended HLS only during 1869-70. Both of these references indicate that communication, even during Langdell's lectures, was not only one-way.

40. According to the printed schedule for the semester, Langdell's class met some sixtytwo times. The first notebook appears not to start at the beginning of the course and records about eleven lectures; the second notebook, which begins in mid-sentence and does not follow from the first, has about twelve lectures.

41. Given their unconventional content, it is ironic that Langdell's teaching of these courses has been cited primarily for employing “the traditional lecture method.” Grey, “Langdell's Orthodoxy,” 1, n. 2. As I suggest below, the lectures reveal an interesting intermediate step between lecturing and case method.

42. In the quotations here and below, ampersands, abbreviations, punctuation, and capitalization in the handwritten sources have been converted to standard English. Points of uncertainty in deciphering the annotations are indicated by dashes or question marks.

43. Cory, Isaac Preston, A Practical Treatise on Accounts, Mercantile, Partnerships… Exhibiting a View of the Discrepancies between the System of the Law and of Merchants, 2d ed. (London: W. Pickering, 1839)Google Scholar. I am grateful to an anonymous reviewer for suggesting the name of Cory and pointing to this reference.

44. Plato, Meno 96e-99c.

45. Batchelder, “C. C. Langdell, Iconoclast,” 381, n. 2; Wiener, Evolution and the Founders of Pragmatism, 232, 235, n. 2.

46. “The raw material of law, [Langdell] devoutly believed, was to be discovered in a library and nowhere else; it consisted, as he himself said, solely of what could be found in the pages of law reports.” Frank, “Why Not a Clinical Lawyer-School,” 908.

47. Stanley N. Katz has insightfully questioned whether Langdell is actually being heretical in attending to the practice of merchants, “since I had always thought the received opinion was that mercantile law depended heavily on the practice of merchants, in counter distinction to most other forms of non-statutory law. Thus practice, rather than judicial opinion, was always a potent factor in the establishment of legal rules in this area.” (Personal correspondence, 25 September 1996.) Nevertheless, even if Langdell were merely being conventional in relying on the practice of merchants in his approach to commercial partnerships and paper, this reliance contradicts the portrayal of Langdell as seeking only for the logical form of law and ignoring the social practices that inform any kind of law. I cannot find any scholarly discussion of Langdell that credits him with any sort of admission that such social practices are relevant.

48. Another source representing an interim pedagogical stage between lecturing with text-books and case method teaching may be found in Langdell's “Notebooks on Civil Procedure at Common Law, 1871-1876,” 4 vols., which contain lecture notes and commentary from courses on civil procedure taught annually with “cases” but “no textbook” by Langdell between 1871 and 1876.

49. Parker (Harvard A.B. 1877) attended HLS from September 1879 until 1882, when he received the LL.B. On Parker and his copy (abbreviated PEq79) see the first reconstructed class discussion below.

50. That Langdell raises these hypotheticals in class without preconceived answers and for purposes of discussion seems to be confirmed by the fact that Ames, in his annotated copy of Langdell, Cases on Contracts (1871), repeats the questions without recording any answer or rules to resolve them, as he otherwise often does (ACon.71, 24-25).

51. Batchelder, “C. C. Langdell, Iconoclast,” 318, n. 1; Wiener, Evolution and the Founders of Pragmatism, 232, 235, n. 2; Whittier, Letter to Francis S. Philbrick, 10 December 1925.

52. This judgment is based on my comparison of LCon70 with ACon71 and LEq75 with AEql and AEq2. Langdell is not hestitant to take issue with the courts, but his contradictions are always nuanced; whereas Ames seems like an eager litigant in writing “Case wrong” beside the title, for example, of the first eight cases in AEql and AEq2 and in ACon71 on 633, 634, 637, 638, 640, 643, 645.

53. An additional, sixth purpose of Langdell's annotations is to make emendations for future editions of the casebook. For example, he corrects misprints or errors in the case reports (90a) and notes “omit” (248a) or “retain” (250a) next to the title of some cases. Since this purpose is not strictly pedagogical, I do not include it among the other five.

54. Charles S. Peirce, “How to Make Our Ideas Clear,” (1878), reprinted in Collected Papers of Charles Sanders Peirce, ed. Hartshorn, C., Weiss, P., and Burks, A. W. (Cambridge: Harvard University Press, 1931-1958), 5: sects. 405-8Google Scholar.

55. I have tentatively described this setting and sketched a framework for understanding the relationships of the Whewellian and Millian traditions of induction in “The Inductive Background of the Inception of Case Method Teaching, 1800s-1910s,” an unpublished draft chapter of a history of case method teaching.

56. See, for example, Wiener, Evolution and the Founders of Pragmatism, 232 and passim.

57. Davis, Natalie Zemon, The Return of Martin Guerre (Cambridge: Harvard University Press, 1983), 106Google Scholar.

58. These two copies are discussed in the second reconstruction below.

59. Davis, now retired, was Henry Charles Lea Professor of History at Princeton University. The Return of Martin Guerre recreates the experience of the sixteenth-century French peasant Bertrande de Rols and the imposter Arnaud du Tilh, who posed as Bertrande's husband, Martin Guerre, returning from fighting in the wars, until Arnaud was indicted for fraud and convicted. Davis recreates a narrative account of these events that is “in part my invention, but held tightly in check by the voices of the past” (5).

60. Schama is Mellon Professor in the Social Sciences at Harvard University. The first quarter of Dead Certainties (Unwarranted Speculations) (New York: Alfred A. Knopf, 1991)Google Scholar presents three different accounts of the death of British General James Wolfe during the storming of Quebec in 1759. The latter three quarters of Schama's book, loosely connected to the first, reconstruct the widely publicized trial, conviction, and execution of Harvard chemistry professor John Webster for the sensational murder in 1849 of Boston Brahmin George Parkman. What Schama calls his two “historical novellas” (322) are told through the personal testimony of the participants, which Schama reconstructs by “selecting, pruning, editing, commenting, interpreting” the original sources (322).

61. Demos is Samuel Knight Professor of American History at Yale University. The Un-redeemed Captive: A Family Story from Early America (New York: Random House, 1994)Google Scholar describes the 1704 raid on Deerfield, Massachusetts, by French soldiers and their Indian allies. Demos focuses his attention upon the kidnapped, four-year-old Eunice Williams, who adopted Indian ways, married a Mohawk husband, converted to Catholicism, and lived the rest of her life among her new people. Demos ventures beyond the documentary record in order “to reconstruct at least the outlines of her experience” (140) when he feels he has adequate “grounds for speculation” (110).

62. Edmund Morgan, “Hostages to Fortune,” New York Review of Books (23 June 1994): 37.

63. “It was bound to happen. Sooner or later a distinguished historian had to cross over, had to mingle the writing of fiction with the writing of history. The circumstances were ripe, the pressures were enormous. Everyone else was doing it.… The blurring of fact and fiction is part of the intellectual climate of our postmodern time.… Although historians have scarcely begun to experience the kinds of epistemological quarrels that have torn apart the literary disciplines over the past decade or so, the signs of change are ominous.” Gordon Wood, “Novel History,” The New York Review of Books (27 June 1991): 12.

64. Schama, Dead Certainties, 322. See the similar opinion in the editor's introduction to review of Dead Certainties, by Schama, Simon, American Historical Review 98 (1993): 121Google Scholar.

65. Brann, Eva T. H., The World of the Imagination: Sum and Substance (Savage, MD: Rowman & Littlefield, 1991)Google Scholar.

66. Demos, The Unredeemed Captive, 22-23.

67. Ibid., 17.

68. Schama, Dead Certainties, 320.

69. Wood, “Novel History,” 16.

70. See Francis Oakley's admirably clear and succinct review and analysis of this controversy in “‘Anxieties of Influence’: Skinner, Figgis, Conciliarism and Early Modern Constitutionalism,” Past & Present 151 (1996): 62–69Google Scholar.

71. See Keynes, J. M., A Treatise on Probability (London: Macmillan, 1921), chs. 18-22Google Scholar; Reichenbach, Hans, Experience and Prediction (Chicago: University of Chicago Press, 1938). ch. 5Google Scholar; Carnap, Rudolf, The Logic of Probability (Chicago: University of Chicago Press, 1950)Google Scholar. This attempt fundamentally maintains “that inductive support [for a proposition] has the logical form represented by the probability statement p(L/e)=r,” meaning that “the probability of L, given evidence e, has value r.” Giere, Ronald N., Explaining Science: A Cognitive Approach (Chicago: University of Chicago Press, 1988), 26.CrossRefGoogle Scholar

72. Bowler, Peter J., Evolution: The History of an Idea (Berkeley: University of California Press, 1984), 17Google Scholar.

73. Nagel, Ernest, The Structure of Science: Problems in the Logic of Scientific Explanation (1960), 2d ed (Indianapolis: Hackett, 1979), 86Google Scholar.

74. Butts, Robert E., ed., “Introduction,” in William Whewell, Theory of Scientific Method, rev. ed. (Indianapolis: Hackett, 1989), 4Google Scholar.

75. William Whewell, “Mr. Mill's Logic,” (1849), reprinted in William Whewell Theory of Scientific Method, ed. Butts, Robert E., rev. ed. (Indianapolis: Hackett, 1989), 302Google Scholar.

76. Finlay, Robert, “AHR Forum: The Return of Martin Guerre The Refashioning of Martin Guerre,” American Historical Review 93 (1988): 566, 554CrossRefGoogle Scholar. See Davis, Natalie Zemon, “AHR Forum: The Return of Martin Guerre ‘On the Lame,’” American Historical Review 93 (1988): 572–74, 601-3CrossRefGoogle Scholar. The qualification “perhaps” points to the significant exception that few complaints are made about historians relying on anthropology, whose ethnographic method—careful observation, sifting, and reporting of evidence about the particular case—is congenial to historiography. See Demos, The Unredeemed Captive, 282, n. 2, 290, n. 69, 291, n. 79; Thomas E. Burke, review of The Unredeemed Captive, by Demos, John, American Historical Review 100 (1995): 1290.Google Scholar

77. Finlay, “The Refashioning of Martin Guerre,” 557.

78. Davis, “‘On the Lame,’” 573.

79. Demos makes precisely the same move when, in the absence of particular data about the experience of Eunice Williams among the Mohawk, he deduces events that likely occurred to her personally from the findings of anthropologists about Mohawk life in general. Demos, The Unredeemed Captive, 139-66, 282, n. 2, 290, n. 69, 291, n. 79.

80. Finlay, “The Refashioning of Martin Guerre,” 570.

81. Ibid.

82. Reichenbach, Hans, Experience and Prediction (Chicago: University of Chicago Press, 1938), 7–10 and passimGoogle Scholar, 382-85 and passim, and The Rise of Scientific Philosophy (Berkeley: University of California Press, 1951), 230–32 and passim.Google Scholar

83. Schama, Dead Certainties, 322.

84. Ibid.

85. Ibid., 327. Because the absence of any verification makes it impossible to distinguish “passages [that] are purely imagined fiction” from the passages that “have faithfully followed accounts given in letters and journals” (327), Schama may be hoping that the credibility of the latter will extend to the former. But the opposite occurs. The absence of verification, even for verifiable propositions, discredits the factual, rather than validating the fictional.

86. See, for example, his notes on reconstructing experience within a Mohawk village. Demos, The Unredeemed Captive, 273, n. 1, 273, n. 11, 274, n. 14.

87. Demos's narrative includes scarcely less historiographical discussion than his acclaimed A Little Commonwealth: Family Life in Plymouth Colony (New York: Oxford University Press, 1970)Google Scholar, which exemplifies the “social history” from which he sees himself departing by employing narrative in The Unredeemed Captive, xi.

88. Burke, review of The Unredeemed Captive, 1290.

89. Demos, The Unredeemed Captive, 140-66.

90. After one such reconstruction, Demos observes, “This, of course, is no more than conjecture.” The Unredeemed Captive, 189-90.

91. Wood, “Novel History,” 12.

92. Finlay, “The Refashioning of Martin Guerre,” 557.

93. Davis, “‘On the Lame,’” 575.

94. Eugene Wambaugh, whose name appears on Fig. 2, graduated from Harvard College withan A.B.in 1876 and attended HLS from 1877 until 1880, when he was awarded an LL.B. Appointed professor of law at HLS in 1892 and then Langdell Professor of Law in 1903, Wambaugh resigned in 1925. On Fig. 3, the annotation mentions “Dart on Vendors.” I am grateful to an anonymous reviewer for the suggestion that this refers to Dart, J. Henry, Treatise on the Law and Practice Relating to Vendors and Purchasers of Real Estate, edited by the author with Barber, William, 4th ed., 2 vols. (London: Stevens, 1871)Google Scholar. I have not been able to confirm the reference because the copy in HLS Library has been withdrawn and was apparently not microfilmed in the series of Nineteenth Century Legal Treatises. On Fig. 4, the annotation “Leake on Contracts” refers to Leake, Stephen M., The Elements of the Law of Contracts (London: Stevens, 1869), 10, 313-15Google Scholar. I am grateful to an anonymous reviewer for help in resolving questionable points in deciphering the annotations in these reproductions.

95. See “The Papers of Christopher Columbus Langdell” in “Index of Modem Manuscript Collection.” Unpublished typescript in Special Collections, Harvard Law School Library, n.d.

96. Here again, I am grateful for the help of members of the Special Collections Staff at Harvard Law School Library, who often helped me in deciphering questionable readings, although I am solely responsible for the final rendering and any errors that have arisen.

97. Schama, Dead Certainties, 327.

98. Demos, The Unredeemed Captive, 190.

99. The glosses frequently refer to other pages in the same annotated casebook or to other sources, and the reconstructed class discussions also quote from such cross-referenced material. For example, Langdell's Summary of Equity Pleading, which was appended to early imprints of his Cases in Equity Pleading and which is explicitly referenced by an annotation, is quoted in the second reconstructed class discussion. The few instances in which quoted material is drawn from sources not explicitly cross-referenced are discussed below.

100. Davis, The Return of Martin Guerre, 108.

101. VNEq75, 33a.

102. AEql, 32a.

103. WEq75, 33a.

104. File of “Letters Received regarding Dean Ames, 1925-1926,” Box 1, Philbrick Papers. See description above.

105. Wambaugh, Eugene, “Professor Langdell—A View of His Career,” Harvard Law Review 20 (1906): 1–4Google Scholar; Beale, Joseph H. Jr, “Professor Langdell—His Later Teaching Days,” Harvard Law Review 20 (1906): 9–11Google Scholar; Schofield, William, “Christopher Columbus Langdell,” The American Law Register n.s. 46 (1907): 273–96Google Scholar; Ames, “Christopher Columbus Langdell,” 467-82; Warren, , History of the Harvard Law School, 2:354–460Google Scholar; Batchelder, “C. C. Langdell, Iconoclast,” 303-23; Fessenden, Franklin G., “The Rebirth of the Harvard Law School,” Harvard Law Review 33 (1920): 493–517CrossRefGoogle Scholar.

106. LaPiana, Logic and Experience.

107. Kimball, The “True Professional Ideal” in America.

108. Quinquennial Catalogue of the Law School of Harvard University, 1817-1934, ed. Holliday, Guy H. (Cambridge: Harvard Law School, 1934)Google Scholar.

109. For example, in ACon71 Ames notes, “Kit changes opinion” (19a) and “Later. L. thinks that…” (153a).

110. Batchelder, “C. C. Langdell, Iconoclast,” 316; Warren, History of the Harvard Law School, 2:373.

111. Schofield, “Christopher Columbus Langdell,” 275.

112. Black, Henry C., A Dictionary of Law (1891; New York: Lawbook Exchange, 1991)Google Scholar.

113. Schama, Dead Certainties, 142.

114. LaPiana, Logic and Experience, 14

115. Batchelder, “C. C. Langdell, Iconoclast,” 316; Warren, History of the Harvard Law School, 2:373.

116. According to my interviews conducted with two individuals who served as assistant deans of Harvard Business School in the 1920s: John C. Baker (October 19-20, 1995, Essex Falls, New Jersey); Deane W. Malott (December 12, 1995; Ithaca, New York).

117. Beale, “Professor Langdell—His Later Teaching Days,” 10; Ames, “Christopher Columbus Langdell,” 480-81.

118. Since some of Ames's casebooks reflect annotations both as a student and as a professor, his annotations are found under either category.

119. Some of these glosses appear to be in a different hand from Parker's.

120. In a bill for an account, the plaintiff alleges that the defendant, often a trustee or guardian, owes him money and asks the court of equity to order the defendant to render a documented accounting of the relevant financial transactions, so as to determine how much is owed. See Langdell, , A Summary of Equity Pleading (Cambridge, MA: Charles W. Sever, 1877), 35–36Google Scholar. In Phillips v. Phillips (1852), discussed below, the court denies the bill on the grounds that the plaintiff is entitled to the accounting only if he and the defendant have mutual access to the transactions. This narrow ruling means that the plaintiff must seek an account through an action in courts of common law, the other main branch of the English legal system.

121. “Suing on an account” or “action on an account” was a common law suit analogous to a “bill for an account” in courts of equity. The latter had long displaced the former in English courts by the time of Phillips v. Phillips (1852). Baker, J. H., An Introduction to English Legal History (London: Butterworths, 1979), 300–305Google Scholar.

122. Beale, “Professor Langdell—His Later Teaching Days,” 10.

123. Note the ambiguity of Beale's term “it,” which could refer either to the incident or to Langdell's amusement when he subsequently recalled the incident.

124. The American colonies adopted the English legal system incompletely, often omitting the English court of equity, or Chancery, as did Massachusetts. In order to make up for such lacunae in the adopted system, various strategies had to be employed, and the term “account annexed” evidently refers to such a strategy. But the term is perplexing, and I have not found anyone who understands the term or the laughable nonsense. Perhaps the student is confusing “actual annexation,” the common law action “by which a chattel can be joined or united to the freehold.” Black, A Dictionary of Law (1891), s.v. “annexation.”

125. This sentence and the one above are written underneath each other in two different pens in PEq79. The tiny handwriting is difficult to read, and I am grateful to an anonymous reviewer for suggesting the reading “common counts” referring to “the pleadings applicable to contract disputes.”

126. Beale recalls, “once in a great while, something would amuse [Langdell], and then he would throw back his great head with a laugh that seemed to have the full strength of his mind in it.” Beale, “Professor Langdell—His Later Teaching Days,” 9-10.

127. Mitford, John, (the Late Lord Redesdale), A Treatise on the Pleadings in Suits in the Court of Chancery, 5th ed. with notes by Smith, Josiah W. (London: Stevens & Norton, 1847)Google Scholar.

128. See LEq75, 77a.

129. In the following reconstruction, additional quoted glosses from the students’ case-books are attributed to Charles Almy, since he is known to have been present, although his casebook is not extant.

130. Langdell, , A Summary (Cambridge, MA: Charles W. Sever, 1877), 130p.Google Scholar

131. VNEq75, 33a. There are very few dates in the annotated casebooks, and it is no less remarkable that Van Nest dated the event than that these casebooks coincide in recording it.

132. Before the plaintiff, Chadwick, can pursue his action (suit) of ejectment in a court of common law against the defendant, Broadwood, who resides on the estate, Chadwick must go to courts of equity and win a bill for discovery to see whether Broadwood has a lease and what it says.

133. “Students soon learned that any position they might advance was pretty soon to be followed by the question ‘Could you suggest a reason?’ This came with such frequent iteration that it was something of a by-word. To this day the question ‘Could you suggest a reason,’ will probably produce a smile among old pupils of Professor Langdell.” Schofield, “Christopher Columbus Langdell,” 275.

134. The Master of Rolls was an important member of the staff of courts of equity, who kept the records and often appointed the lesser clerks. The “clerk in court” here refers to a staff member of the court of common law.

135. A negative plea actually denies a “material allegation” in the plaintiff's bill. An affirmative plea does not deny an allegation (thereby implicitly conceding the truth of the bill), but avoids the bill by asserting, for example, that the remedy is barred for some reason, such as because it would violate the Statute of Limitations. Langdell, A Summary of Equity Pleading [1877], 61-65.

136. A “fine” in conveyancing was the “amicable” resolution of a suit “by which the lands in question become, or are acknowledged to be, the right of one of the parties.” Black, A Dictionary of Law (1891), s. v. “fine.” The plea of fine here seems to be the defendant's claim that he owns the land by virtue of such a fine in the past. Fines were abolished in England by the time of this suit.

137. The effect of a plea either of the Statute of Limitations or of adverse possession is to say that the defendant has resided on the estate so long that the plaintiff, Chadwick, has forfeited any claim he may have had to the real estate and that, therefore, Broadwood does not need to provide discovery of the leases in the court of equity, as Chadwick's bill requests.

138. For example, a gloss refers (101a) to Cases on Sales (1872).

139. See, for example, the obituary of Ames in the Boston Herald (9 January 1910).

140. Ames, “Christopher Columbus Langdell,” 478.

141. The annotations from the 1890s pose the puzzling question as to why Ames would add lengthy annotations to a twenty-five-year-old casebook that had been superseded by a second edition in 1879 for a course that he never taught again after 1877. An equally puzzling question is why, having continued to gloss ACon71 after the 1879 edition appeared, Ames, as late as the 1890s, laboriously copied or paraphrased the glosses of the former into his copy of the latter, ACon79. These puzzles may be explained by the fact that Ames wrote several articles on the history of contract law in the 1890s and must have consulted his annotated copies of Langdell's casebooks in doing so. See “Parol Contracts Prior to Assumpsit,” Harvard Law Review 8 (1894): 252CrossRefGoogle Scholar, reprinted in Select Essays in Anglo-American Legal History by Various Authors, Compiled and Edited by a Committee of the Association of American Law Schools (Boston: Little, Brown, 1909) 2:304–19Google Scholar. See also “Two Theories of Consideration: Unilateral Contracts,” Harvard Law Review 12 (1899): 515CrossRefGoogle Scholar; “Bilateral Con-tracts,” Harvard Law Review 13 (1899): 29Google Scholar; “Mutuality in Specific Performance,” Columbia Law Review 3 (1903): 1CrossRefGoogle Scholar; “Specific Performance for and Against Strangers to the Contract,” Harvard Law Review 17 (1904): 174CrossRefGoogle Scholar; all reprinted in Lectures on Legal History and Miscellaneous Legal Essays. In particular, “Bilateral Contracts” (1899) is cited by Ames in ACon79, 191a, 193a, 282a, 398a, 399a.

142. I am grateful to Lewis Sargentich of HLS for a discussion that helped me to understand and articulate the importance of this narrative structure.

143. Langdell occasionally employed the term “Spiritual court” interchangeably with “ecclesiastical court,” which he considered to be the source of the procedure for courts of equity in England. Langdell, A Summary of Equity Pleading [1877], xiii.

144. The reference here is to Parsons, Theophilus, The Law of Contract, 2d ed., 2 vols. (Boston, 1855)Google Scholar, for which Langdell served as the primary research assistant during and following his own studies at Harvard Law School.

145. On Langdell's view of the relationships among liability of the parties, knowledge of the liability, and sufficiency of consideration, the reviewer of this casebook for the American Law Review seems justified in observing: “the cases on Forbearance, in Section 4 of the chapter on Consideration, are collected with an over-scrupulous minuteness. It seems as if the desire to give the whole history of the doctrine has led to putting in some contradictory and unreasoned determinations which could have been spared.” [Review of] A Selection of Cases on the Law of Contracts… by C. C. Langdell… 1870. (Part I), American Law Review 5 (1871): 539-40.

146. Hall, Letter to Francis S. Philbrick, 8 December 1925.

147. “Manuscript Book of Lecture Notes taken by an unidentified student in Suretyship class taught by C. C. Langdell in 1892-3,” 236.

148. Whittier, Letter to Francis S. Philbrick, 10 December 1925.

149. Hand, Letter to Francis S. Philbrick, 17 February 1926.

150. These words of Grant Gilmore are quoted affirmatively in Hoeflich, “Law & Geometry,” 121, n. 100.

151. Mill, John Stuart, “Dr. Whewell's Objections to the Four Methods,” in A System of Logic. Ratiocinative and Inductive, 8th ed. (New York: Harper & Brothers, 1874), 308Google Scholar.

152. Unpublished manuscript quoted in Wiener, Evolution and the Founders of Pragmatism, 76.

153. C. C. Langdell, “[Annual Report of the Dean of] The Law School,” in Annual Reports of the President and Treasurer of Harvard College, 1893-94, 121.

154. A Summary of Equity Pleading [1883], iv.

155. The absolute figures for these percentages are drawn from Langdell, “[Annual Report of the Dean of] The Law School [1893-94],” 121.

156. Eliot, Annual Reports of the President and the Treasurer of Harvard College, 1893-94, 23.

157. Eliot, Charles W., “Langdell and the Law School,” Howard Law Review 33 (1920): 525Google Scholar.

158. Upon resigning as dean, Langdell lost his secretary, and an item for “Reader to the Dane Professor” appeared in the Law School budget beginning in 1895-96. “Treasurer's Statement, 1896,” in Annual Reports of the President and Treasurer of Harvard College, 1895-96 (Cambridge: Harvard University, 1897), 63.Google Scholar

159. Schofield, “Christopher Columbus Langdell,” 277.

160. Beale, “Professor Langdell—His Later Teaching Days,” 9-10.

161. Ames, “Christopher Columbus Langdell,” 480.

162. Ibid., 479, 481.

163. Batchelder also mentions Langdell's “bad eyesight” without relating it to his negative judgment about Langdell's teaching (308). Ironically, Batchelder later observes metaphorically that, in developing “the case-system of teaching law” “Langdell… was experimenting in darkness absolute save for his own mental illumination.” “C. C. Langdell, the Iconoclast,” 315.

164. Lee, Letter to Francis S. Philbrick, 18 February 1926.

165. “Extracts from Letters by Onetime students under Langdell and Ames, Relative to the Attitude of Those Teachers toward the Law,” mimeographed pamphlet in the file “Letters Received regarding Dean Ames, 1925-1926,” Box 1, Philbrick Papers, Harvard University Archives, Letter X.

166. Whittier, Letter to Francis S. Philbrick, 10 December 1925.

167. Fessenden, “The Rebirth of the Harvard Law School,” 514.

168. Hollins, Mark, Understanding Blindess: An Integrative Approach (Hillsdale, NJ: Lawrence Erlbaum, 1989), 107Google Scholar.

169. Kirtley, Donald D., The Psychology of Blindness (Chicago: Nelson-Hall, 1975), 144, 154Google Scholar. See, too, Lowenfeld, Berthold, “Mental Hygiene of Blindness,” in Psychological Diagnosis and Counseling of the Adult Blind, ed. Donahue, Wilma and Dabelstein, Donald (New York: American Foundation for the Blind, 1950), 42–45.Google Scholar

170. Gilmore, The Death of Contract, 13.

171. Hoeflich, “Law & Geometry: Legal Science from Leibniz to Langdell,” 121, n. 100.

172. Frank, Jerome, “A Plea for Lawyer Schools,” Yale Law Journal 56 (1947): 1303CrossRefGoogle Scholar.

173. Quotation is from the observation: “Jerome Frank came within an ace of calling Langdell an emotional cripple who retreated into the library because he could not cope with the real world.” Stolz, P., “Clinical Experience in American Legal Education: Why Has It Failed?” in Clinical Education and the Law School of the Future, Resource Papers of the Conference [on law students in court] held… at the University of Chicago, ed. Kitch, Edmund W. (Chicago: University of Chicago Law School, 1969), 72Google Scholar. See Frank, “Why Not a Clinical Lawyer-School,” 906-17; Chase, Anthony, “The Birth of the Modern Law School,” American Journal of Legal History 23 (1979): 331, n. 11.CrossRefGoogle Scholar

174. This bibliography does not include the annual reports written by Langdell as Dean of HLS, which are available in the published annual reports of the President of Harvard University. Nor does it address The Christopher Columbus Langdell Papers, twelve boxes (Modern Manuscript Collection, Harvard Law School Library). The entry for this item in the “Index of Modern Manuscript Collection” of the Special Collections of HLS observes that the Langdell papers “consist of [ten] manuscript boxes containing various groups of handwritten drafts. These groups are in disarray, and as there are no chapter or book-title headings, nor consecutive numbering of pages, it is impossible to restore the original order of this material. Moreover, the manuscripts are written in a hand so difficult as to be almost illegible to the average reader.” The papers that I examined cursorily in a few of these boxes appear to treat equity jurisdiction and may be drafts or notes for the articles on this topic that Langdell wrote in the 1880s and 1890s. The papers in Boxes 11 and 12 contain legible correspondence relating to a particular litigation and private property dispute.

175. The catalogue of the law school was included in the university catalogue: A Catalogue of the Officers and Students of Harvard University for the Academic Year 1869-70 (Cambridge: Sever, Francis, 1869-)Google Scholar.

176. “Announcements, Tabular Views, Examination Papers of Harvard Law School, 1860-81,” and “Announcements, Tabular Views, Examination Papers of Harvard Law School, 1882-1890,” Bound Manuscript Collection, Harvard Law School Library.

177. The Dean's annual report was included in Annual Report of the President of Harvard College, 1869-70 (Cambridge: University Press, 1871)Google Scholar. Title varies in subsequent years.

178. The required courses established for the first year at HLS in 1877-78 persevered through the next century and would still be familiar, though the content had changed, as the required subjects for first-year students in the 1990s: Contracts, Torts, (Real) Property, Criminal Law and Procedure, and Civil Procedure. Langdell, C. C., “[Annual Report of the Dean of the Law School],” Annual Reports of the President and the Treasurer of Harvard College, 1877-78 (Cambridge: Harvard University, 1879), 85Google Scholar.

179. Although the law school course schedules indicate that this book was used in the late 1870s, the earliest imprint appears to be in 1881.

180. Eliot, Charles W., “[Address of Dean C. C. Langdell],” Report of the Ninth Annual Meeting [of the Harvard Law School Association]… in especial Honor of Christopher Columbus Langdell (Boston: Harvard Law School Association, 1895), 72.Google Scholar

181. Ames, James Barr, “[Annual Report of the Dean of] The Law School,” Annual Reports of the President and the Treasurer of Harvard College, 1899-1900 (Cambridge: Harvard University, 1901), 172.Google Scholar