American Legal Realism and Empirical Social Science

John Henry Schlegel

• Publisher: The University of North Carolina Press
• Year: 2000
• Print ISBN: 9780807857533, 9780807821794
• eBook ISBN: 9780807864364
• Topic: History
• Subtopic: North American History
• Index: History

John Henry Schlegel recovers a largely ignored aspect of American Legal Realism, a movement in legal thought in the 1920s and 1930s that sought to bring the modern notion of empirical science into the study and teaching of law. In this book, he explores individual Realist scholars' efforts to challenge the received notion that the study of law was primarily a matter of learning rules and how to manipulate them. He argues that empirical research was integral to Legal Realism, and he explores why this kind of research did not, finally, become a part of American law school curricula. Schlegel reviews the work of several prominent Realists but concentrates on the writings of Walter Wheeler Cook, Underhill Moore, and Charles E. Clark. He reveals how their interest in empirical research was a product of their personal and professional circumstances and demonstrates the influence of John Dewey’s ideas on the expression of that interest. According to Schlegel, competing understandings of the role of empirical inquiry contributed to the slow decline of this kind of research by professors of law.

Originally published in 1995.

A UNC Press Enduring Edition — UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.

1 LEGAL SCIENCE, SOCIAL SCIENCE, AND PROFESSIONAL IDENTITY

BY ANY MEASURE, the time immediately after World War I was a quite extraordinary one at the Columbia Law School. Years later, T. R. Powell remembered the “cooperative intellectual interchange” and “the full joy of sympathetic co-operation with fellow faculty members” that yielded results for the Law School and the individuals “that we all saw to be good.”¹ This brief instant began in the fall of 1919 when Walter Wheeler Cook joined Powell and Underhill Moore, peaked with Herman Oliphant’s arrival from Chicago in the summer of 1921, broke with Cook’s departure for Yale at the end of the summer of 1922, and then died with Harlan Fiske Stone’s resignation as Dean, the ensuing fight over his replacement, and Powell’s departure in 1923.² For four years these men were a hearty, heady band who joined together to educate their Dean and each other about law. Their expansive-ness was understandable. All were in their intellectual prime; all but Stone were, or at least considered themselves to be, politically left; and all were anticipating the near, optimistic future of the Law School, which was about to experience the retirement of its entire, conservative, old guard save only Stone’s law partner. They, as the middle-aged heart and effective head of that faculty, were, for all practical purposes, in control.

As part of the act of asserting control, of both showing and giving meaning to that control, they convinced Stone to have the Law School offer a series of “Special Conferences in Jurisprudence” as part of the summer session in 1922. Now, a great deal should not be read into this choice. This was the assertion of control, not of revolution. The courses were designed for a select audience of “members of the bar, teachers of law, and advanced students of law”; this was not a movement toward jurisprudence for every first-year law student by any means.³ Nor was the idea particularly new. For over ten years the Boston Book Company had been churning out volumes in the Modern Legal Philosophy Series, sponsored and overseen by a committee of the Association of American Law Schools (AALS), which was designed to make contemporary European legal philosophy available in translation to the American academic legal community.⁴ But talk of legal theory and its importance had seldom reached the omnipresent law reviews, so in that sense the idea was adventuresome. The ambiguity of doing something new but not so new was reflected also in the speakers. The first was Roscoe Pound, talking on the ever popular “Sociological Jurisprudence,” apparently a repeat of a seminar, “Problems in Social Philosophy,” he had given the year before at Harvard, and a topic he had been pushing for over ten years.⁵ He was an obvious choice, in ways that the other two speakers were not. One was a big name, John Dewey, the professor of philosophy at Columbia who was to speak on “Some Problems in the Logic and Ethics of Law,” billed as “an attempt to apply the method of contemporary pragmatic logic and a social theory of ethics to some of the more fundamental questions relating to legislation and the procedure of the courts.” The other was a comparatively small name, Cook, who was to speak on “Some Problems in Legal Analysis,” an exercise in the analytical jurisprudence of such concepts as “right; ownership; title; ‘void’ and ‘voidable’; possession; capacity; intent and motive; legal personality; etc.” developed along the lines laid out by the then late Wesley N. Hohfeld, once Cook’s colleague at Yale.⁶

The conferences were said to be “a success,” though “Dewey did not have as much legal material as would be desirable” and Pound said “nothing new.”⁷ Yet, if one looks at the speakers, there was something paradoxical underneath the entire event. Each of the three subjects was a lively, contemporary topic, at least if one overlooks the purely academic legal reputation of Hohfeld. Dewey’s pragmatic philosophy was a centerpiece of the general intellectual consciousness of the time. Pound’s jurisprudence with its similar emphasis on experimental, social engineering was likewise highly topical, at least in legal circles, and exhibited clear resonances with Dewey’s method, both in its antiformalism and in its emphasis on securing practical solutions to current problems. And Hohfeld’s analysis was in some ways all the rage. Yet, if one looks carefully, it would be hard to find two more antithetical or at least skew topics than Dewey’s pragmatism and Hohfeld’s analytics.

Dewey’s was an antiformalism; Hohfeld’s a high formalism. One looked toward use in everyday affairs; the other, toward nothing more than clear thinking about what was called “jural” —that is, legal and equitable —relations. So when Cook, who went to all of Dewey’s lectures, pronounced them to be “one of the most helpful things I have ever had” and announced that when he gave his course again he planned “to include the bulk of Dewey’s,”⁸ somewhere, somehow the scoreboard should have lit up TILT. But it did not. Indeed, Cook soon took up the role of cheerleader for science in the law schools and yet spent the rest of his career doing the conflict of laws, the least scientific of subjects.

Such is the central paradox in Cook’s life and, in a parallel way, of American Legal Realism. Realism too was an antiformalism that preached, and occasionally delivered evidence of, the importance of an empirical understanding of the workings of the legal system and yet somehow Realism always returned to case law analysis. That this paradox was by no means a necessary one can be seen from the career of another member of that hearty band at Columbia. Underhill Moore in all likelihood sat with Cook in the audience at Dewey’s lectures, and was enough taken by Dewey’s message to have soon after told a friend, “There is no God and Dewey is his prophet.”⁹ But, in contrast to Cook, soon after 1922 Moore simply abandoned case law analysis and took up empirical work; he even began to recast his major courses to reflect his interest in empirical understandings of law.¹⁰ Thus there was a tolerably clear choice, as is almost always the case, as to how to understand Dewey’s message for law. But for most people the choice was obvious, as can be seen from the fact that Moore’s colleagues and fellow Realists thought him a bit mad in his single-minded pursuit of science. To understand why that choice was obvious, why it was somehow easier to live with the paradox and at best work at ways to elide it, is to understand the peculiar way that the twentieth-century notion of science was received into American legal thought. In order to begin to gain that understanding one has to begin with a look at the world of the American law professor at around the turn of the century.

Becoming a Law Professor in the West

Langdell’s revolution in legal education —the shift from teaching the “principles” of law by means of text, lecture, and recitation to “deriving” those principles solely from the examination of cases in large-class, question-and-answer format —can only be understood as the aperçu of one possessed.¹¹ Had this revolution been begun anywhere else than Harvard¹² and lacked the assistance of James Barr Ames,¹³ in all likelihood it would have sunk beneath the waves as John Norton Pomeroy’s similar innovation had.¹⁴ Indeed, twenty years after Langdell began his revolution, he had but one major convert, Keener’s Columbia,¹⁵ and the merits and demerits of the innovation were still quite seriously being discussed in the pages of the second university-based law review, that of Yale.¹⁶ But, accompanying Keener’s victory at Columbia, a succession of individuals, of whom John Henry Wigmore and Nathan Abbott are among the most notable, effectively conquered the law schools west of the Appalachians in the name of Langdell and his system.¹⁷ The lucky ones like Abbott returned to the East Coast; the others, for example Harry Richards, longtime dean at Wisconsin, learned, or chose, to live in the provinces.¹⁸ But for all it was an exciting enterprise, at least at the start.¹⁹ The work of conquest done, there then came the problem of populating these law schools with law teachers devoted to Langdell’s system. The problem was not unprecedented; the English civil service had met it as the British colonial empire expanded, and there are earlier Roman precedents. But peopling colonial law schools is a different problem from that of claiming territory in the name of Langdell.

While there were several ways of solving the problem of populating the law schools with Langdellian case law teachers, one seems to have been chosen. Promising young aspirants for teaching posts at major law schools like Harvard and Columbia were sent to, or placed in, provincial law schools, most notably in the Midwest, with the expectation that they would learn their craft and, in effect, work their way back east.²⁰ There were obvious exceptions to this pattern of advancement; indeed, careful examination of the growth of the Harvard and Columbia faculties shows that, by and large, service in the provinces was not the most likely way to a major teaching appointment.²¹ Nevertheless, career patterns of early twentieth-century law professors suggest that the idea of working one’s way up through a kind of “colonial” service was at least widespread, if not well founded, and wholly new for this group of academics that had traditionally been recruited from local practitioners, often locally educated practitioners.²²

Individuals were not, however, simply thrown to the wolves that quite literally still were to be found in the West, as it was called at the time, and told to teach law for the greater glory of Christopher Columbus Langdell. Rather, several different kinds of support were provided for these young law teachers. First, and most obvious was personal support and encouragement in correspondence from the folks back home. Beyond this the case method itself provided a common identity in academic endeavors as well as a link to the past that helped to justify colonial life. Similarly, common hazards and the camaraderie often engendered in the course of meeting them created a network of friends whose help could be called on when advancement was sought.²³ However, at least as important as these forms of support was the notion of professional role that received its early definition by Dean Ames and substantial affirmation at almost every meeting of the visible focus of the profession, the new Association of American Law Schools.²⁴

When Ames, drawing on ideas of Thayer²⁵ and, to a lesser extent, Langdell,²⁶ posited the “threefold vocation of the law professor — teacher, writer, expert counselor in legislation” — and adverted to the “strenuous” nature of these tasks, as well as their importance for “the maintenance and wise administration” of the law, he created an appealing vision of the academic lawyer’s role in society. Central to that vision was its scholarly aspect; Ames expected the “full-time” law professor to create “a high order of treatises on all the important branches of the law, exhibiting the historical development of the subject and containing sound conclusions based on scientific analysis.”²⁷

For the first twenty years of the century, if not longer, Ames’s vision of professional role, embroidered in dozens of slightly different variations, but almost always emphasizing an ideal of detailed, systematic, sustained, and comprehensive works of scholarship on the German grand scale, formed the core of the identity of the professional law teacher.²⁸ It was instantiated by the scholarly landmarks of the time, Williston’s and Wigmore’s treatises, and the more monumental of the early casebooks, of which Gray’s six-volume work on property is surely the most extraordinary. For the harried, underpaid young law professor who found himself in Columbia, Lawrence, or Lincoln with many students and many courses but few colleagues and precious little in the way of library resources,²⁹ it provided at least rhetorical support for enduring those teaching responsibilities and, at the same time, it resonated with the idea of advancement through colonial service in such a way as to hold out the possibility that better conditions at better schools would bring better chances for writing and legislative drafting.³⁰

The twin notions of advancement through colonial service and of a serious commitment to legal scholarship that provided a systematic presentation of a properly bounded particular branch of law by and large defined much of the world of aspiration for the pre-World War I law professor.³¹ It was into this world that Walter Wheeler Cook and Underhill Moore came as young law teachers. How much they knew about this world is not clear. Cook’s background was the more academic and he had actually lived in the Midwest for a while. He was said to be descended from “early Pilgrim stock,” the son of a high school principal who, at the time of Cook’s birth in Columbus, Ohio, ran a school that “admitted Negroes on the basis of full equality” and who later ran the preparatory schools associated with Potsdam State Normal School and Rutgers College and finally was superintendent of the Flushing, New York, school system.³² Moore’s background was more professional. His father was a Park Avenue ophthalmologist and there were lawyers among his family, most notably his grandfather, Abraham Underhill and his grand uncle, Thomas S. Moore.³³ Both Cook and Moore were graduates of Columbia College and both completed the course work for degrees in both the Law School, at that time at the peak of its early development,³⁴ and in the School of Political Science, the premier department in the country.³⁵ Indeed, they were in all likelihood at least nodding acquaintances, though not good friends, while at Columbia. But for a while, at least, their paths diverged.

Moore completed his masters in political science in 1901 and law degree in 1902. He then entered practice in New York City doing “probate, the construction of wills and trusts, the ‘disentangling’ of statutes and the law of property.”³⁶ Cook on the other hand immediately headed west in pursuit of what appeared to be a career as a political scientist. That was not surprising for he had come at law quite obliquely. As an undergraduate his strengths were in mathematics and physics.³⁷ Apparently he initially decided to pursue a career in the physical sciences, for upon graduation in 1894 he took an instructorship in mathematics and a year later he headed off to Germany on a two-year fellowship in physics. Inexplicably, while in Germany he studied not just the sciences but also philosophy and law under Paulsen and psychology under Wundt.³⁸ This deviation did not seem to bother the Department of Mathematics, which, on his return in late fall 1897, hired him as an assistant for two more years, even though he had enrolled in both the Law School and the School of Political Science.³⁹ After a year of full-time study of law, Cook, seemingly not much captivated by the subject, increased his course load in the School of Political Science, completing a mas...

Table of contents

• Cover Page
• AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE
• Copyright Page
• Dedication
• CONTENTS
• PREFACE
• introduction: WHYS AND WHEREFORES
• prologue: AS THE STORY USUALLY IS TOLD
• 1 LEGAL SCIENCE, SOCIAL SCIENCE, AND PROFESSIONAL IDENTITY
• 2 EMPIRICAL LEGAL RESEARCH AT YALE: CHARLES E. CLARK AND WILLIAM O. DOUGLAS
• 3 EMPIRICAL LEGAL RESEARCH AT YALE: THE SINGULAR CASE OF UNDERHILL MOORE
• 4 EMPIRICAL LEGAL RESEARCH AT JOHNS HOPKINS: WALTER WHEELER COOK AND HIS FRIENDS
• 5 EMPIRICAL LEGAL RESEARCH SINCE WORLD WAR II: THE REINVENTION OF THE SQUARE WHEEL
• afterword:ON THE HISTORY OF INTELLECTUALS, INCLUDING LAWYERS
• BIOGRAPHICAL APPENDIX
• NOTES
• BIBLIOGRAPHY
• INDEX