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Hail! Langdell!

Published online by Cambridge University Press:  27 December 2018

Paul D. Carrington
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Abstract

Christopher Columbus Langdell (whose career ended a century ago) achieved fame by devising the case method to turn law into a laboratory science divorced from politics and to make his course so rigorous that it would attract able students seeking to test and prove themselves with the severest academic challenge. The method was adapted by many law teachers who were unpersuaded by the idea of law as apolitical science. These included Langdell's colleagues, James Bradley Thayer and John Chipman Gray, who shared Holmes's disdain for the theory. The method survived and flourished despite its theoretical weakness because it worked in practice. No mere rite of passage, it developed numerous traits and skills useful to lawyers, it revealed a true picture of the political and atomized nature of American law, and it nurtured many of the civic virtues that American law teachers have sought to nurture since the time of George Wythe.

Type
Research Article
Information
Law & Social Inquiry , Volume 20 , Issue 3 , Summer 1995 , pp. 691 - 760
Copyright
Copyright © American Bar Foundation, 1995 

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References

1 Langdell resigned as dean in June 1895 and retired as Dane Professor in 1930. Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America 469 (1908, De Capo ed. 1970) (“Warren, History”). He died in 1906. Id. at 479.Google Scholar

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6 Thomas Grey accurately portrays Langdell's theory as the “indispensable foil, the parental dogma that shapes the heretical growth of a rebellious offspring.” Thomas Grey, “Langdell's Orthodoxy,” 45 U. Pitt. L. Rev. 1, 3 (1983). It was indeed the foil for several generations of offspring.Google Scholar

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8 There may also be an analogous circularity in Langdell's underlying theory. Grey, 45 U. Pin. L. Reu. at 20-24.Google Scholar

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In the selection of our Law Professor, we must be rigorously attentive to his political principles. You will recollect that before the Revolution, Coke on Littleton was the universal elementary book of law students, and a sounder Whig never wrote, nor of profounder learning in the orthodox doctrines of the British constitution, or in what were called English liberties. You remember also that our lawyers were then all Whigs. But when his black-letter text and uncouth but cunning learning got out of fashion, and the honied Mansfieldism of Blackstone became the student's horn-book, from that moment, that profession (the nursery of our own Congress) began to slide into toryism, and nearly all the young lawyers are now of that hue. They suppose themselves, indeed, to be Whigs because they no longer know what whigism or republicanism means. It is in our seminary that the vestal flame is to be kept alive; it is thence to spread anew over our own and the sister States. Albert E. Bergh, ed., 12 Writings of Thomas effeson 455-56 (1907).Google Scholar

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33 Carrington, Paul D., “Teaching Law and Virtue at Transylvania University: The George Wythe Tradition in the Antebellum Years,” 41 Mercer L. Rev. 673 (1990).Google Scholar

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37 Walker was a native of Massachusetts and a former student of John Ashmun and Joseph Story. He was active in various law reform movements. His biography is Walter T. Hitchcock, Timothy Walker: Antebellum Lawyer (New York, 1990).Google Scholar

38 This insertion is justified in part because Walker was an early advocate of the rights of women and would have welcomed women into the legal profession. See id. at 228.Google Scholar

39 Introduction to American Law: Designed as a First Book for Students 1-2 (5th ed., 1869). The 11th edition of this work was published in 1905. For an echo of Walker's statement by Langdell's immediate predecessor at Harvard, see Emory Washburn, Law as an Element of Social Science (Boston, 1868).Google Scholar

40 The founding teacher was Benjamin F. Butler, a member of the Jackson and Van Buren cabinets. On the founding of the school, see generally Ronald R. Brown, ed., The Law School Papers of Benjamin F. Butler (New York, 1987). A law department was also established at the same time at Hamilton College, with a Jacksonian as law professor. Jesse H. Cousault, “John Hiram Lathrop,” m Dumas Malone, ed., 6 Dictionary of American Biography 16 (New York, 1935).Google Scholar

41 “To dignify any one calling by styling it a profession seemed undemocratic and un-American.” Roscoe Pound, The Lawyer from Antiquity w Modem Times: with Particular Reference to the Development of Bar Associations in the United States 182 (St. Paul, Minn., 1953) (“Pound, Antiquity”).Google Scholar

42 Samuel Haber, The Quest for Authority and Honor in the American Professions 1750-900 at 209 (1991), described this 1846 constitution as “the institutional expression of a ruinous confusion of justice with politics.” See also Pound, Antiquity 223-42.Google Scholar

43 Goebel, History 44-68 (cited in note 22). Dwight came to Columbia from Hamilton, where he had been teaching law for 13 years.Google Scholar

44 New York law provided for admission to practice of any graduate of law schools designated by the legislature. The diploma privilege was abolished in New York in 1879. The story is told by Goebel, History 104-8, and by William P. LaPiana, Logic and Experience: The Origin of Modem Legal Education 83-88 (New York, 1994) (“LaPiana, Logic and Experience”).Google Scholar

45 Goebel, History 68-89. Stevens erroneously inferred that Dwight was “hostile to nonlaw subjects” being taught in his school. Law School 39 (cited in note 11). Dwight did resist requiring his students to take Lieber's course or courses taught by Lieber's successors. This opposition surely reflected his concern for enrollment, not a preference for depoliticized law teaching.Google Scholar

46 Mary O. Furner, Advocacy and Objectivity: A Crisis in the Professionalization of American Sod Science, 1865-1905 at 27 (Lexington, Ky., 1975) (“Fumer, Advocacy”). (Fumer erroneously refers to Timothy M. Dwight, the grandfather of Theodore.)Google Scholar

47 He actively opposed antitrust legislation. E.g., “The Legality of Trusts,” 3 Pol. Sci. Q. 592 (1888).CrossRefGoogle Scholar

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49 In 1817, the Michigan Territorial Legislature created a university and, at the behest of the Chief Judge of the Territory, Augustus B. Woodward, directed it to teach law. Woodward's model was the Law Department at the College of William and Mary. Elizabeth Gaspar Brown, Legal Education at Michigan 1859-1959 at 4-6 (Ann Arbor, Mich., 1959). An early enactment of the Michigan legislature in 1837 reiterated this mandate, and the directive was uttered again in 1851. Id. at 10. When at last the law department was established, its stated aim was to prepare democratic leaders. James V. Campbell, On the Study of Law (Ann Arbor, Mich., 1859); Address of Thomas McIntyre Cooley and Poem by D. Bethune Duffield on the Dedication of the Law Lecture Hall (Ann Arbor, Mich., 1863). And see Thomas McIntyre Cooley, The Lawyer's Duty to Be Faithful to His Own Manhood (Ann Arbor, Mich., 1878).Google Scholar

50 Alan R. Jones, The Constitutional Conservation of Thom Mclntyre Cooky: A Study in the History of Ideas 20-32 (New York, 1987) (“Jones, Constitutional Conservatism”).Google Scholar

51 A Treatise on he Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union (Boston, 1868; de Capo ed. New York, 1972) (“Cooley, Limitations”). This work was devoted chiefly to state constitutions that were the source of almost all restraints on state government prior to the ratification of the Fourteenth Amendment in 1868.Google Scholar

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53 One bridge between Lieber and Cooley was Andrew Dexter White. White studied at Yale with Theodore Woolsey, “Lieber's most influential disciple.” Dorothy Ross, The Origins of American Sod Science 67 (Cambridge, U.K., 1991) (“Ross, Origins”). On the advice of Francis Wayland, White accepted an appointment at Michigan in 1857, two years before the arrival of Cooley. Cooley arrived in 1859, a raw but well-read intellect who shared many interests with White. White left Ann Arbor in 1867 to become the founding president of Cornell University but left behind his star pupil, Charles Kendall Adam. Both White and Adam were lifelong proponents of Lieber's historical method of studying politics. This is evident in White's The Greater States of Continental Europe (New York, 1874) and Adams's Democracy and Monarchy in France (New York, 1874). Adam succeeded White as President of Cornell in 1885 and moved on to be President of the University of Wisconsin in 1896, where his leadership foreshadowed the development of “The Wisconsin Idea.” Veysey, Emergence of the University 104 (cited in note 15). Whether White and Adam brought Cooley to Lieber is not certain, but Lieber's influence on Cooley was substantial. Jones, Constitutional Conservatism 104-9.Google Scholar

54 In 1881, Adams founded the School of Political Science earlier designed by White; Cooley succeeded Adams as the dean of that School. Howard H. Peckham, The Making of the University of Michigan 1817-1967 at 56 (Ann Arbor, Mich., 1967). The program bore a strong resemblance to that established by Lieber and Burgess at Columbia.Google Scholar

55 Jones, Constitutional Conservatism 215-16, 252-93.Google Scholar

56 A mugwump was a former Republican who supported Grover Cleveland. See generally Richard Hofstadter, The Age of Reform 131-73 (New York, 1955).Google Scholar

57 For an evaluation of his stellar performance as a regulator, see Henry J. Friendly, The Federal Administrative Agencies: The Need for Better Definition of Standards 29, 31 (Cambridge., Mass., 1962).Google Scholar

58 A partial list is on file with the author. It includes Justices Day and Sutherland of the U.S. Supreme Court, numerous U.S. Senators, and many members of highest state courts.Google Scholar

59 Dwight was born in Catskill, N.Y., in 1822; Cooley in Attica, N.Y., in 1824; Langdell in New Boston, N.H., in 1826. Dwight had started teaching law at Hamilton College in 1846; Cooley at Michigan in 1859.Google Scholar

60 These winds of change are also briefly discussed in Paul D. Carrington, “Butterfly Effects: The Political Influence of Law Teachers,” 41 Duke L.J. 741, 774-86 (1992).CrossRefGoogle Scholar

61 American Law 41 (cited in note 5). A candle lit during that “night” was the formation of the American Social Science Association in 1865. Charter members included Lieber and Dwight of Columbia; Baldwin, Wayland, and Woolsey of Yale; and Washbum of Harvard, all law teachers. Charles Eliot was also an early member. See Fumer, Advocacy 10-34 (cited in note 46).Google Scholar

62 For contrasting views of the corruption and its sources, see Robert H. Wiebe, The Search for Order 1877-1920 at 27-43 (New York, 1967); 2 James Bryce, The American Commonwealth 136-46 (2d ed. New York, 1913); The Autobiography of Lincoln Steffens (New York, 1931); and William S. McFeely, Grant: A Biography 404-36 (New York, 1982).Google Scholar

63 Cooley seems to have been aware of this. Jones, Constitutional Conservatism 87 (cited in note 50).Google Scholar

64 James Morris, Heaven's Command: An Imperial Progress 196 (New York, 1973).Google Scholar

65 The term is Gary Becker's. Human Capital (New York, 1964).Google Scholar

66 Veysey, Emergence of the University 264-68 (cited in note 15).Google Scholar

67 Harlan B. Phillips, Frankfurter Reminisces 26-27 (New York, 1960).Google Scholar

68 For an encapsulation of this feature of American higher education, see U.S. News & World Rep., 21 March 1994, at 66-74.Google Scholar

69 See Magali S. Larson, The Rise of Professionalism: A Sociological Analysis 141-45 (Berkeley, Cal., 1977).Google Scholar

70 Charles Warren, A History of the American Bar 562 (New York, 1921).Google Scholar

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76 Collected Essays in Political and Social Science 3-6 (New York, 1885).Google Scholar

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80 See generally George A. Baltsell, ed., The Centennial of the Sheffield School (New Haven, Conn., 1950); Louise L. Stevenson, Scholarly Means to Evangelical Ends: The New Haven Scholars and the Transformation of Higher Learning in America 1830-1890 at 67-86 (Baltimore, 1986).Google Scholar

81 F. H. Hedge, “University Reform: An Address to the Alumni of Harvard at Their Triennial Festival,” 19 July 1866, Atlantic, Sept. 1866, at 296, 299.Google Scholar

82 2 Warren, History 359.Google Scholar

83 ld. at 363.Google Scholar

84 5 Am. L. Rev. 177. The article was likely written by the editor of the Review, Oliver Wendell Holmes, Jr. See Mark DeWolfe Howe, Oliver Wendell Holmes: The Shaping Years 305 (Cambridge, Mass., 1957). It does, however, refer to a “science of human law” in faintly Langdellian terms.Google Scholar

85 The story of the selection is told in LaPiana, Logic and Experience 10-14 (cited in note 44). On Eliot's influence on Langdell, see Anthony Chase, “The Birth of the Modem Law School,” 23 Am. 1. Legal Hist. 329 (1979).CrossRefGoogle Scholar

86 Sutherland, Law at Harvard 165 (cited in note 2).Google Scholar

87 Parsons on Contracts was published in Boston in 1853.Google Scholar

88 2 Warren, History 360 (cited in note 1).Google Scholar

89 Id. at 360 (quoting Charles O'Conor, a lion of the New York bar).Google Scholar

90 His interest in English history was keen and enduring. Joel Seligman, The High Citadel: The Influence of the Harvard Law School 30 (Boston 1978) (“Seligman, High Citndel”).Google Scholar

91 Williston, Life and Law 200 (cited in note 9). But see Langdell, Christopher C., “The Status of Our New Territories,” 12 Harv. L. Rev. 365 (1899).CrossRefGoogle Scholar

92 Letter to Theodore Woolsey, President of Yale University, 6 Feb. 1871, quoted by LaPiana, Logic and Experience 77. Langdell wrote Woolsey declining appointment to a committee on jurisprudence of the American Social Science Association. He was in this Sense profoundly conservative. Laura Kalman, Legd Realism at Yale, 1927-1960 at 13 (Chapel Hill, N.C., 1986) (“Kalman, Legal Realism”). However, given Langdell's single-minded preoccupation with private law, there was no necessary connection between his legal theory and Social Darwinism or laissez-faire economics. He seems not to have recorded an opinion of social statics or the economics of William Graham Sumner.Google Scholar

93 Quoted in 2 Warren, History 397. The preoccupation of Eliot with the status effects of academic rigor was not exceptional. See Veysey, Emergence of the University 98-197 (cited in note 15).Google Scholar

94 2 Henry James, Charles W. Eliot, President of Harvard University 1869-1909 at 87 (Boston, 1930), quoting Eliot's letter to William James, 20 May 1894.Google Scholar

95 Eliot's view on Langdell is expressed in “Langdell and the Law School,” 33 Harv. L. Rev. 518 (1920). There is an incongruence between Eliot's approval of Langdell's theory and his participation in the work of the American Social Science Association, which was reformist.CrossRefGoogle Scholar

96 “John Marshall: In Answer to a Motion that the Court Adjourn on February 4, 1901, the One Hundredth Anniversary of the Day on Which Marshall Took His Seat as Chief Justice”in Oliver Wendell Holmes, Collected Legal Papers 266, 267 (New York, 1920) (“Holmes, Collected Pup”).Google Scholar

97 Letter to Harold Laski, 9 Dec. 1921, quoted in Richard A. Posner, ed., The Essential Holmes 115 (Chicago, 1990) (“Posner, Essential Holmes”).Google Scholar

98 There were others as well as Sumner. See generally William E. Nelson, The Roots of American Bureaucracy, 1830-1900 at 82-112 (Cambridge, Mass., 1982), and Walt W. Rostow, Theories of Economic Growth from David Hume to the Present (New York, 1990) (“Rostow, Theories of Economic Growth”); Fumer, Advocacy (cited in note 46); and Ross, Origins (cited in note 53).Google Scholar

99 Grey, 45 U. Pitt. L. Reu. (cited in note 6). Grey credits Duncan Kennedy for the term “classical” as applied to Langdellian formalism in America arising as early as 1850 and dying no later than 1940. Id. at 2 n.6. See also Morton Horwitz, The Transformation of American Low 1870-1960 at 9-32 (New York. 1992) (“Horwitz, Transformation”). This would indicate the term “pre-classical” for the more realistic thinking of earlier generations of Americans, Whig theorists being specified. Id. at 38 n.47. I quibble with the term as misleading. It suggests greater durability and strength in the moment of formalism than I perceive. Among thoughtful lawyers, it was a mere fad. l am also disconcerted by the identification of Francis Lieber as a classicist. Id. at 29 n.24. Lieber has far more in common with contemporaries such as Michelman, Sherry, Sunstein. and Kronman than with Langdell. See Carrington, 42 j. Legal Edw. (cited in note 34).Google Scholar

100 The origins of the term are explored in Fritz Schulz, Roman Legal Science 63-72 (2d ed. Oxford, 1967).Google Scholar

101 On the use of the term in antebellum America, see LaPiana, Logic and Experience 38-54 (cited in note 44).Google Scholar

102 Quoted in Sutherland, Low at Harvard 175 (cited in note 2).Google Scholar

103 Kalman, Legal Realism 13 & 120-21 (cited in note 92), is among those who identify Langdell with political conservatism.Google Scholar

104 Williston, Life and Law 205 (cited in note 9). For closer analysis of Langdell's view of precedent, see Grey, 45 U. Pin. L. Rev. at 24-27 (cited in note 6).Google Scholar

105 “In short, [New England intellectual life] was still colonial forty years after Bunker Hill. English culture had a right of way that no one thought of challenging, and every Boston boy was taught to regard Pope and Burke as unapproachable.” Van Wyck Brooks, The Flowering of New England 1815-1865 at 10 (New York, 1936).Google Scholar

106 Samuel Eliot Morison, Three Centuries of Harvard, 1636-1936 at 225-28 (Cambridge, Mass., 1936).Google Scholar

107 Langdell was certainly aware of Austin at the end of his career. See his “Classification of Rights and Wrongs,” 13 Harv. L. Rev. 537 (1900). Holmes saw Hegelian influence in Langdell, but was careful not to suggest that Langdell had ever read Hegel. Book Note, 14 Am. L. Reu. 223 (1880).CrossRefGoogle Scholar

108 “The existence of law is one thing, its merit or demerit another.” John Austin, The Province of Jurisprudence Determined, ed H. L. A. Hart, at 184 (London 1955) (“Austin, Province of Jurisprudence”). The work was first published in 1835 but was not circulated in the United States until 1861.Google Scholar

109 Norman Silber & Geoffrey Miller, “Toward ‘Neutral Principles’ in the Law: Selections from the Oral History of Herbert Wechsler,” 93 Colum. L. Rev. 854, 858 (1993). Duncan Kennedy seems to fancy that there are many surviving specimens; he alleges that the Langdell fallacy is “the intellectual core of the ideology” of contemporary legal education. Kennedy, “Legal Education and the Reproduction of Hierarchy,” 32 1. Legal Edw. 591, 596 (1982). The allegation appears to rest on a conflation of those who think law is not politics with those who think law is not merely politics. And see Posner, Richard A., “Legal Scholarship Today,” 45 Stan. L. Reu. 1647 (1993); id., “The Deprofessionalization of Legal Teaching and Scholarship,” 91 Mich. L. Reu. 921 (1993). Judge Posner attributes to all professionalism in law a “deep-seated belief in the autonomy of law as a subject of thought and practice.”CrossRefGoogle Scholar

110 2 Warren, History 376 (cited in note 1).Google Scholar

111 Cooley did not try. In A Treatise on the Low of Torts or the Wrongs Which Arise Independent of Contracts 635 (Chicago, 1879) (“Cooley, Torts”), he emphasized the “high importance” of the social policy underlying the rule.Google Scholar

112 2 Warren, History 409-13.Google Scholar

113 Langdell, Christopher C., “The Status of Our New Territories,” 12 Harv. L. Reu. 371 (1899); see also id., “The Northern Securities Case and the Sherman Anti-Trust Act,” 16 Harv. L. Rev. 539 (1903).Google Scholar

114 Langdell, , “Dominant Opinion in England during the Nineteenth Century in Relation to Legislation as Illustrated by English Legislation, or The Absence of It, during That Period,” 19 Harv. L. Reu. 151 (1906).CrossRefGoogle Scholar

115 Charles Warren, Centennial Histmy of the Harvard Law School 1817-1917 at 34-35 (Cambridge, Mass., 1917) (“Warren, Harvard Centennial”); Franklin G. Fessenden, “Rebirth of the Harvard Law School,” 33 Haw. L. Rev. 493, 497-501 (1920).Google Scholar

116 For a review of their arguments against final examinations, see Seligman, High Cita-del 32-33 (cited in note 90). The first examinations were administered in 1872; 45 students first-year students sat for them and 3 failed. 2 Warren, History 385. Those who failed were advised that they would not receive a degree, although they could remain a second year. A majority of the students did not sit for the examinations but left school without a degree. This, however, was no change from past custom. Id. at 382 n.1.Google Scholar

117 The background of Ames's appointment is described by LaPiana, Logic and Experience 15-16 (cited in note 44). As LaPiana suggests, it may have been part of Eliot's purpose thus to weaken the influence of the profession on the professional school.Google Scholar

118 Sutherland, Law at Hmvard 185 (cited in note 2). William A. Keener of the Class of 1877 was appointed in 1881 and joined Ames and Langdell in its use. Holmes was appointed in 1882 and for a brief time used the case method in reaching Torts. 2 Warren, History 428-32.Google Scholar

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120 As did Roscoe Pound at Harvard as late as 1889-90. For an account of his year, see Paul Sayre, The Life of Roscoe Pound 78-84 (Iowa City, 1948).Google Scholar

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127 See generally McManis, Charles R., “The History of First Century American Legal Education: A Revisionist Perspective,” 59 Wash. U.L.Q. 597 (1981); Currie, Brainerd P., “The Materials of Law Study,” 31 J. Legd Educ. 331 (1950).Google Scholar

128 In his inaugural address, Professor Story advised his law students “to addict [themselves] to the study of philosophy, of rhetoric, of history, of human nature.” W. Story, ed., The Miscellaneous Writings of Joseph Story 529 (Boston, 1852) (“Story, Writings of Joseph Story”). Currie, 31 J. Legal Educ. at 361-67, observed that the teaching of the Harvard Law School in Story's time was limited to the reading of legal materials and the performance of professional tasks. He accordingly concluded that Story was responsible for the narrowness of Harvard legal education in later decades. It is true, as Currie observed, that the Harvard program was less broad than the teaching being done in Story's time at the University of Maryland or Transylvania University, but in its previous iteration, the Harvard Law School had failed for want of students and the students coming in Story's time seldom stayed for long enough to secure the broad education he described in his inaugural lecture. Story's advice had been taken seriously by at least some of his students. Charles Sumner, one of Story's favorite students, made himself a pedant in an effort to maintain Story's favor. See David Donald, Charles Sumner and he Coming of the Civil Was 22-35 (Cambridge, Mass., 1967).Google Scholar

129 Rostow, Theories of Economic Growth 153-55 (cited in note 98). See also Fumer, Advocacy 278-312 (cited in note 46), and Ross, Origins 172-218 (cited in note 53).Google Scholar

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135 Cf. “Address of Chief Justice Holmes at the Dedication of the Northwestern University Law School Building,” Chicago, 20 Oct. 1902, m Holmes, Collected Papers 272, 277 (cited in note 96): “I almost fear that the intellectual ferment of the better schools may be too potent an attraction to young men and seduce into the profession many who would be better elsewhere.”Google Scholar

136 Holmes to Sir Frederick Pollock, 10 April 1881, 1 Holmes-Pollock Letters 17 (Boston, 1941).Google Scholar

137 Shattuck had been a law school classmate of Langdell and had been consulted by Eliot in making the Langdell appointment. LaPiana, Logic and Experience 12 (cited in note 44). He was also later a mentor to Holmes.Google Scholar

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142 This characterization of Cooley will surprise some readers. Because his 1868 work was cited by the Supreme Court in the line of cases leading to its decision in Lochner v. New York, 198 U.S. 45 (1905), the conventional view among 20th-century historians has been that Cooley was a social Darwinist or at least a libertarian in contemporary parlance. For a recent expression of that assessment, see Kermit Hall, The Magic Mirror Law in American History 222-23 (New York, 1989). Cooley was, however, a “bamburner”-a radical adherent of Andrew Jackson. As his writings did indeed reflect, he mistrusted legislative regulation of the economy. But, as Jackson's opposition to the Bank of the United States reflected, early populists, of whom Cooley was one, opposed most government intervention in economic matters because they supposed that, in the end, the government's efforts will mostly enrich the wealthy and empower the powerful. He found evidence confirming this view in the performance of the federal government led by Ulysses Grant and his successors. Our own time is not without examples. Cooley strongly favored antitrust laws and public health regulations, and concluded his career as an aggressive regulator of railroads. It is not likely that he would as a judge have voted within the majority in Lochner. For further discussion with particular reference to Cooley's views on professional licensing, see Carrington, Paul D., “Legal Education for the People: Populism and Civic Virtue,” 43 Kan. L. Rev. 1 (1994).Google Scholar

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154 Roland Gray, John Chipman Gray 7 (Boston, 1917) (“R. Gray, Gray”).Google Scholar

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160 Gray wrote Eliot that Langdell's “intellectual arrogance and contempt is astonishing” and his detachment from reality a cause for despair about the future of the school. Letter of 8 Jan. 1883, quoted in Mark DeWolfe Howe, Justice Oliver Wendell Holmes: The Proving Years 158 (Cambridge, Mass., 1963) (“Howe, Holmes: The Proving Years”). See also LaPiana, Logic and Experience 18-20 (cited in note 44).Google Scholar

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162 In the preface to his first major work, The Rule against Perpetuities v (Boston, 1886) (“Gray, The Rule”), he explained: “In no part of the law is the reasoning so mathematical in its character; none has so small a human element. A degree of dogmatism, therefore, may be permitted here which would be unbecoming in other branches of the law.”Google Scholar

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165 Robert S. Summers lists him as the first “instrumentalist.”Instrumentalism and American Legal Theory 23 (Ithaca, N.Y., 1982). But see Alexander, Gregory S., “The Dead Hand and the Law of Trusts in the Nineteenth Century,” 37 Stan. L. Reu. 1189 (1985).CrossRefGoogle Scholar

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169 R. Gray, ed., The Name and Sources of Law 2 (2d ed. Boston, 1921). The first edition was published in 1909 (“Gray, Nature and Sources”).Google Scholar

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172 This is the characterization given Gray in William Twining, Karl Llewelyn and the Realist Movement 22 (London, 1973) (“Twining, Llewelyn”).Google Scholar

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183 In some measure, this applies even to Dwight, although to Dwight, history revealed stable, perhaps permanent, principles. See Inaugural Addresses of Theodore W. Dwight and George P. Marsh in Columbia College 38-40 (1859). And see Gilmore, American Law 34-60 (cited in note 5). “Historical jurisprudence” is a view that abides. E.g., Clark, Robert, “The Interdisciplinary Study of Legal Education,” 90 Yale L. J. 1238 (1981); Young, Stephen B., “Beyond Bork: Historical Jurisprudence in Replacement of the Enlightenment Project,” 35 J. Legal Educ. 333 (1985). Compare Carrington, 41 Duke L.J. (cited in note 60).CrossRefGoogle Scholar

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187 This feature of the Gray book became almost universal. See Albert James Hamo, Legal Education in the United Stares 69 (Chicago, 1953).Google Scholar

188 Pound's debt to Gray is discussed in Sutherland, Law at Harvard 201-4 (cited in note 2). Pound was like Gray influenced by Savigny; his “sociological jurisprudence” was but a step beyond “historical jurisprudence.” See David Wigdor, Roscoe Pound, Philosopher of Law 161-232 (Westport, Conn., 1974).Google Scholar

189 Frankfurter was also close to Thayer and a powerful influence on his successors at Harvard. Frankfurter reacted against the emphasis on private law, and sought to bring the Harvard Law School back to the traditional aim of American law teachers, training a democratic elite. See Michael E. Parrish, Felix Frankfurter and His Times: The Reform Years (New York, 1982); Levinson, Sanford, “The Democratic Faith of Felix Frankfurter,” 25 Stan. L. Rev. 430 (1973).CrossRefGoogle Scholar

190 His academic standing was undistinguished, but Harvard marks in his time were substantially based on deportment. For discussion, see G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self 25-27 (New York, 1993) (“white, Holmes”).Google Scholar

191 Quoted in Liva Baker, The Justice from Beacon Hill 97 (New York, 1991) (“Baker, The Justice).Google Scholar

192 For a full account of Holmes's military experience, see Sheldon Novick, The Life of Oliver Wendell Holmes 29-89 (Boston, 1989).Google Scholar

193 It may be overstatement to say that “[t]he lesson Holmes seems to have derived from his Civil War experience is that all passionate appeals to conscience and morality resulted in the destruction of a fragile social order.” Horwitz, Transformation 116 (cited in note 99). Holmes was not wrong in believing that the abolitionists he knew as a youth were so overwrought by their disgust with slavery that they were irrational in favoring a program, viz., disunion, that would have done nothing to relieve the misery of the slaves.Google Scholar

194 Letter to Frederick Pollock, 30 Aug. 1929, quoted in Posner, Essential Holmes 108-9 (cited in note 97).Google Scholar

195 Letter to Harold Laski, 20 Aug. 1909, quoted in id. at 116.Google Scholar

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197 William James, quoted in Baker, The Justice 268.Google Scholar

198 1 John Torrey Morse, Life and Letters of Oliver Wendell Holmes 63 (Boston, 1896).Google Scholar

199 Quoted in Baker, The Justice 176.Google Scholar

200 Commentaries on American Law (12th ed. Boston, 1873).Google Scholar

201 For a full account of this event, see White, Holmes 124-27 (cited in note 190).Google Scholar

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203 Quoted in id. at 208-9. Holmes's published review of Langdell was less harsh. Book Notice, 6 Am. L. Rev. 354 (1872) and Book Notices, 14 Am. L. Rev. 14 (1880). The latter, a review of the second edition, was unsigned. For attribution of authorship, see Saul Touscer, “Holmes a Hundred Years Ago: The Common Law and Legal Theory,” 10 Hofsna L. Rev. 673, 695 n. 91 (1982).Google Scholar

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205 See generally on Holmes's view of Langdell, Howe, Holmes: The Proving Years 155-59 (cited in note 160).Google Scholar

206 Holmes, The Common Law, ed. Mark Dew. Howe, at 32 (Boston, 1963) (“Holmes, The Common Law”).Google Scholar

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208 Dicey's review appeared in The Spectator for June 3, 1882; for discussion see White, Holmes 185.Google Scholar

209 White, Holmes 171.Google Scholar

210 In one important respect, Holmes was Austinian. This was in the stem distinction he made between law and morality. See generally his “The Path of the Law,” 10 Harv. L. Rev. 457 (1897).CrossRefGoogle Scholar

211 The “Grand Style” of American judicial opinions appeared at the outset. For explanation, see Carrington, 41 Duke L.J. 753-55 (cited in note 60). Slavery litigation contributed to a revival of English formalism in the middle of the 19th century. Nelson, William E., “The Impact of the Anti-Slavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America,” 87 Harv. L. Rev. 513 (1974).CrossRefGoogle Scholar

212 White, Holmes 152 (cited in note 190), notes that Holmes's inadequate citations had the effect of making him appear to be “virtually alone” in his views.Google Scholar

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215 10 Harv. L. Rev. This was a lecture presented at Boston University in 1897. Horwitz, Transformation 142 (cited in note 99), identifies this lecture as the moment from which Langdell's theory of apolitical law “was brought constantly under attack.” This may reflect a somewhat ethnocentric view; I am not certain that Langdell's theory was ever taken seriously enough west of the Hudson River to warrant an attack.Google Scholar

216 St. George Tucker succeeded George Wythe as Professor of Law and Police at the College of William and Mary in 1790. His Americanized version of Blackstone's Commentaries was published in four volumes at Philadelphia in 1803.Google Scholar

217 Among those who have celebrated Holmes's work as an intellectual breakthrough was Felix Frankfurter. Kalman, Legal Realism 55-56 (cited in note 92). Frankfurter was perhaps justly accused of “institutional parochialism” requiring him to celebrate everyone associated with the Harvard Law School. Nevertheless, he was not wrong to see in Holmes almost everything that was later said by Frank, Llewellyn, and Douglas. Where perhaps he erred was in failing to trace those ideas beyond Holmes into earlier antecedents.Google Scholar

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219 In Felix Franfurter, ed., Ms. Justice Holmes and the Supreme Court 3 (Cambridge, Mass., 1938).Google Scholar

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225 Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 US. 518 (1921).Google Scholar

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230 Pomeroy and his method are described in Thomas Garden Barnes, Hastings College of Law: The First Century 88-116 (San Francisco 1978).Google Scholar

231 See generally Reed, Training 369-85 (cited in note 7); Stevens, Law School 60-63 (cited in note 11).Google Scholar

232 William A. Keener, Harvard Law ‘78, was appointed to the faculty in 1883. He was appointed Story Professor in 1888. 2 Warren, History 432, 443 (cited in note 1). The next year, he resigned in a salary dispute. Williston, Life and Law 129-30 (cited in note 9). He was promptly appointed at Columbia and was soon appointed dean, replacing Dwight in 1891. Goebel, History 135-58 (cited in note 22). In “The Inductive Study of Law,” 28 Am. L. Rev. 713 (1893), he defended the method as a source of “mental discipline,” not scientific law. See also William A. Keener, Preface, Selection of Cares on the Law of Quasi-Contract (New York, 1888).Google Scholar

233 Goebel, History 118-22.Google Scholar

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235 Professor Burgess, who had held a joint appointment in Law and Political Science, was eased out of the law faculty by Keener. But he and several others continued teaching in the Law School. Id. at 148-49. Keener left the deanship in 1901. The Law School returned to the broader intellectual horizons afforded by Kent and Lieber with the appointment of Harlan Fiske Stone as dean in 1910. For the ensuing two decades, it was the cockpit of efforts to blend professional training with wide-ranging inquiry. Id. at 215-305; Currie, Brainerd, “The Materials of Law Study (Part Ill),” 8 J. Legal Educ. 1 (1955).Google Scholar

236 Wigmore was politically active throughout his long career, which he commenced teaching law as a comparatist on the faculty of Keio University in Tokyo. Roalfe, Wigmore 21-31 (cited in note 213).Google Scholar

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238 Charles N. Gregory had been the first emissary from Harvard, but he had failed to persuade most of those teaching there. Richards came as dean a few years later. William R. Johnson, Schooled Lawyers: A Study in the Clash of Professional Cultures 107, 120-33 (1978) (“Johnson, Schooled Lawyers”); W. Scott Van Alstyne, “The University of Wisconsin Law School: An Outline History,” 1968 Wis. L. Reu. 321, 326-27.Google Scholar

239 Gilmore was deeply involved in the Progressive Movement in Wisconsin. He later served as President of the Association of American Law Schools and of the University of Iowa. His views on legal education are set forth in “Some Criticisms of Legal Education,” 7 A.B.AJ. 227 (1921). On the university's role in the state, see Charles McCarthy, The Wirconsin Idea (Madison, Wis., 1912).Google Scholar

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244 He earned a Columbia doctorate with Frank Goodnow, Lieber's student who was teaching in the program established at Columbia by Lieber.Google Scholar

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252 See Simeon E. Baldwin, “Graduate Courses at Law Schools,” 11 1. SOC. Sci. 132 (1879).Google Scholar

253 His most celebrated work was in this field, and it led to the observation that he was “no closet thinker” but “had been through it all.” Letter of Alfred R. Russell to Baldwin, 16 Nov. 1904, quoted by Jackson, Baldwin 147.Google Scholar

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256 The senior Woolsey, then the Yale President, had edited posthumous editions of Lieber's Civil Liberty and Self Government (Philadelphia, 1874) and his Manual of Political Ethics (Philadelphia, 1875). His son edited a fourth edition of the former work in 1901. Lieber's work was used in teaching Constitutional Law at Yale for over a half-century.Google Scholar

257 The story is told by LaPiana, Logic and Experience 143-47 (cited in note 44).Google Scholar

258 The story is told in Twining, Llewelyn 26-34 (cited in note 172).Google Scholar

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271 The reasons for this are stated below, text at notes 347-57.Google Scholar

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297 Edward J. Phelps, “Methods of Legal Education,” 1 Yale L.J. 139, 143 (1892).Google Scholar

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299 In fact, Ames may never have been in this sense a purist, although he sometimes sounded as one. See Grey, 45 U. Pitt. L. Rev. at 29 n.102 (cited in note 6).Google Scholar

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303 But see Kennedy, 32 J. Legal Educ. (cited in note 109).Google Scholar

304 An instance of this brought Langdell into disrepute with his students. Fessenden, 33 Harv. L. Reu. at 501 (cited in note 115).Google Scholar

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312 “It does not take a very keen intelligence to see from the 19th century law reports and statute books and from what other documents reveal that in practice men in the United States always have adopted an instrumental view of the law.” Hurst, 1968 Wis. L. Rev. at 336-37 (cited in note 4).Google Scholar

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326 It was precisely for this reason that Langdell's method won enthusiastic applause from A. V. Dicey. See his “Training in English Law at Harvard,” 13 Harv. L. Rev. 412 (1899). Dicey was a believer in the supreme beneficence of judge-made law. Law of the Constitution (Oxford, 1885). And he saw little hope of good in anything that Parliament might be induced to enact. Law and Opinion in England (Oxford, 1905).Google Scholar

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330 The availability of Parliament accounts for the appeal in England of Austin's vision of law. Austin was acutely interested in a theory of legislation, see Austin, Province of Jurisprudence Lectures 2-4 (cited in note 108). And Bentham seems to have been the progenitor of the movement to codify the common law. Charles M. Cook, The American Codification Movement 74-78, 97-104 (Westport, Conn., 1981).Google Scholar

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332 On other causes of anti-intellectualism in law, see generally Francis A, Allen, Law, lntellect and Education (Ann Arbor, Mich., 1979).Google Scholar

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341 Compare “Beyond the Ordinary Religion,” 37 J. Legal Educ. 508 (1987).Google Scholar

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351 Id. at 63-65.Google Scholar

352 Id. at 65-70.Google Scholar

353 Id. at 70-79.Google Scholar

354 Id. at 79-81.Google Scholar

355 Id. at 81-91.Google Scholar

356 Id. at 152-86.Google Scholar

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358 It may have been with such principles in mind that Montesquieu (bk. V, ch. 3; cited in note 23) advised the 18th-century Revolutionaries to revere their law if they would maintain a republic; the wisdom of his counsel has not yet been disproved.Google Scholar

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365 I take this as the central point of Kronman's book. Lost Lawyer (cited in note 9). He identifies the academic movements to economic analysis of law and to critical legal studies as “neo-Langdellian” initiatives animated by the desire to liberate legal scholarship from the need to cope with practical realities. Id. at 225-70. Compare Robert Post, “Lani Guinier, Joseph Biden, and the Vocation of Legal Scholarship,” 11 Const. Commentary 185, 193 (1994).Google Scholar

366 For an authoritative statement that this is occurring see Bar Task Force (cited in note 311). As Grey, 45 U. Pitt. L. Rev. at 53 (cited in note 6), among others observes, the growing disjunction is associated with a reduction of the “gap between legal scholarship and the rest of the intellectual world.”Google Scholar

367 For fuller development of this observation, see Edwards, Harry T., “The Growing Disjunction Between Legal Education and the Legal Profession,” 91 Mich. L. Rev. 34 (1992).CrossRefGoogle Scholar