ľ ■■ ^ m Patterns of American Jurisprudence NEIL DUXBURY CLARENDON PRESS - OXFORD ..',\ ■ ■-■i ,1 '•ä favfif 10$ niftl AiirůjD; ô>p|UAĎld VNAOHINMINQaaXSQ • q aůtid $3if-plJ& nu uWVJfi luéií, us p-uuVil i'-íl-l) L-I6FJZV-61- Q ŕifJHf mt?ti I'O'i/TDifquj iir SiußOfliJ ns^uo-j Jo tfimiii, JJtlDJttMTT Olľfj vmtj xvintwii'd "1 SupiSoiVH'j /iJVjQi'j i/Hiiiy J35U\pJI>d 1 Il3llb^0'i\ JJdJ HO pA,0(*WS $UU(j ItgjJlpuOl HJlft 4Üipi\flU< MOH'l'iioü 'tjpu/n n motJJi.ii f"" p*<<>ilí•; '4$}tfj.npcr -o jpmj fo Aem ,/ íu!Jľ^J J!ľ/ iíiľ /f i^Pffsaj JdJ ŕJJ.uujjiľ ;,J|1 SU'>jriÍJiíi^ 'y/j S?fJ "J'ŕíTM ■jíviy Áijsizniii;i psofxQ !o JťcfííídíH "_? uoiiSt'iiJJiI juud ^Jdj i'iO'P'M ''-UDJ/,1 ÁUŮ iftl Jŕl llIľJÍ X\iH Itl 'fiJl)IUI-iUV^ JO 'idd^JŕifT JPilJľ^JJj F' liľ pWrlJ^ '■pz-MpoitSsi jq .todu umjni'lqrtd Siifl fo jVlírf "fj pvfi&saj FjyjfiJ //T ZtrfjJ {Vwn^J'oJ I'im) itJ&li'dvil \<] f-Jtiiift W-JiJ CůůJ ÁJnqxíra PW © ytv/_ «iftŕ ,jJľ; íi-hij A"jnJ?^j|j|j pJ-jfXQ iííj í^^j^ -ííJ'u.LJdJ/í f>*vfXQ fo .JJEJIU ^JďlV W w ľ'vf*0 UnpiKff ľ 11isíl II) s.imütluiijj p3jfl?,i«i s B fUŕF oittüsoj. tiAyöj^ p&Bj SJňJySjdJ.7 njjj^ ŕiju^iňjV iffij) "Jjj-j;^' jHirdörj^fy pjJpnjH,1 ínjpif\ jndmtľj tftmu ufiuiV^f jiiqiiPISj íiiĽjŕ Si"!jj jJUJ-in/j rŕ|fi>dj 64 The. Challenge of Formulism CONCLUSION There has been ;i tendency among com m en talons to assume that Lhi? discovery of cracks in (he edifice of late n i nĽ teen tb -century legal formalism led almost immediately to the birth of a new jurisprudence. This was not the case. There was never, in American jurisprudence, anything so extravagant as it 'revolt against formalism'.254 There wai, rather, only a gradual, somewhat hesitant development away from late nineteenth-century legal thinking. The great forerunners of American legal realism. Holmes and Pound, were not committed anti-formalists. Hohnes was tbc master of ambiguity, while Pound was Lhe master of recantaLion. And while some realists were intent on seeing the hitter pay for his sins, with the iůTínei they had little quarrel. The idea of a revolt against formalism implies the emergence of an explicit philosophy of anti-foimalism;. but between the eras «t Langdell and Pound, no such legal philosophy emerged, Certain ideas and arguments at variance with the ideology oF formalism came to Fruition* for sure, but ii was not until the emergence of legal realism that these ideas and arguments began t[ ;í; ■ftst 'tJ&TJ" l"jírií *-[op"íÄ »] P91P 'i™11^ lř: J^linj^neJJ ,jÍ(| ÍUfUlj poois, pimoj IPLI! 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JOUO JOOp 31] 1 lliqS rt"|UO ]0U piilj 31] 'uisi]dsi ie3s] jo S3SSSOXS sqi pni? Xiuqiidod sqj qjoq aq 01 poAi^iod di| lEqM qjna oj íJOjja uü u| 9f,_-|EnpiAipui ^qj jo mopsoJj oi|t pne iftsuiuj^Aoiä p3liui|[ 's.i3Mod jo iroifE.ieds? sip 'ujST]EUoniHLisuco os]ii jnq íoe/.uouijp X^io jou psiusp iusqe33 jeq; ŠuiilSji: &l?m pmioj 'sq^i-|iiui oqt Xg ,.^,-jVlei ssuionsq 't| op X^qj iisij^ 'op oi ssooqn Xaqi iei]a\ 'ssooip Xsqt ^e Op ÄEUI S|EIJIJJO ÍUQ, 'ÄpeptJJO 3UOp SI J3A311il]A^ SI rt\e| IU3(|1 Oj_ MllOlAEqjq jo S3SJU0D [EínpľAipuL j o ja^pfiu i! £i: 'suoijoir juopü^dapui ju *;:iija*; t sc sjE]d w*\t.\ XpiriiiOR ]] íEq] SuiumssE 'XiSAfiEJiíiituinpij pne Aqjepipnf 3Ji?[d ss^pj ^|ti?iipi:ii?qň\jOD0ľiirA_iGsqo^Aiiaafqoiíi;oi«ii iľuijq sj^liüzu ^4] snq i_ -iJOííGJJ pnr s|dpiiiid piiR lusisXs p^ 'sn|RA jo suomtci ot se S3inds|p pi? 'aq oí jqläno jcq^L jo suojjssnb ne aii?[ jo 3JITöt-js s-fi uiůjj [^]3iľueeqi|3, II Jjq3fj fi|i!ilba T.q3iEiL JO 'íi i<:qi 'i|m aqi — |i:niiOuqE pasoddns sa"f^]í sM-nji].w.joTjn^si|ii;iii souspnidujinf ni n n ■ ^]í!n sip us|paií|iio luip lie úl* X|[etjit3SSS si, 'ps^3|[i? sq 'uisqe/jy LXjrdiU5|Lii;q [ľjolu pai: [irjL|[[od JO 11]S1|RS1 |RÍ3[ JO UIUSITOdOjd SllISnJDli EJIieHlaJ p3A13JUOJ-])l ^|qi?UI?Alli puR ,ínsd 1131J0 'psiE]osT s^Rin oj ^ptTOA^sq pne s[i£ůl ^qi inoq^nojq] 'panuiyüo.i sq 'Jäqii?y LasuodssJ íiqi o\ j^puiof^i [irnuoi Ou pajsjjo piino^t PP^'liistusAoui tenps[|siui ur sr [[tííiirs.i ]r3s] stTijsp o» psfdiuane s/joipnc ^qi q3iqA\ ni '^uujj; sinojaf pair uX|[^mo|-] |jlijj luoj[ :isuod^:ij paq^i[<]nd r ps^oAOJil ii 'JE|miiJiíd in 'iIeiii [TíiiiE^pnidsunf ?t[] uo uisqiíSí jE^Sj jnd o] 'X]|i?otiioji ']i*sp poo3 u pip ^sjsqej-.T sip, ^iiizuiji.io spíyu: sih 'J$i>$uj iiis-ipuijoj Jo äSusijUifä äi/x Z9 66 The. Evolution of a Mood was but, equally, what it bequeathed to modem jurisprudential culture. This demands an examination of the theoretical and political characteristics of realism, not simply to demonstrate how it failed to live up to its ambitions, but also to illu&lrau: how certain of its messages have been neglected and suppressed.3 Perhaps it seems contradictory to suggest that realism hits exerted a powerful influence over the direction of modern jurisprudence while simultaneously being neglected and suppressed, Hut there is no contradiction, for in different fields of jurisprudence realism has been treated differently. In one area of modern American jurisprudence, critieal legal studies, realism has for the most pari been treated in a fairly positive fashion j as the beginning of the so-called 'revolt1 against legal formalism (a 'revolt' which proponent of critical legal studies have attempted to rekindle). In other areas, realism has proved influential preeisely because it is perceived as the primary problem to be surmounted. Legal theorists have tended more generally to view realism as a rather barren wasteland, litLered by various cliched and largely discredited arguments and assertions-'1 The law is what judges, do', 'judges aie only human', 'stimuli and hunches, not rules, form the basis of judicial decision-making'—these and ijmilar adages represent a common perception ot legal realism: realism, that is, na tiie jurisprudence o I legal incertitude and arbitrariness. To a certain degree, Litis outlook can be found in the literature of legal realism. Hut lhal is not all that there is to be found. There is much more besides, and it is important to try to exeavalc that which the caricature of realism leaves buried. Not that ihcre is no reason to lake the caricature seriously. Hostility towards the view that legal rules play a limited, sometimes negligible role 1 By fat the best historical studies of legal rcalitm ate those of l-aura Kaiman and ]tihn Henry Schlegel. See Laura Kaiman. Legal Realism at Yale: I927-196Ů (Chapel Hill: University of North Carolina Press, lEföu), Juhu TTenty Sclllcgcl, -Ameni^n Legal fccalism anil FLmpinLal SoLÉaL Science: F,nrn tile Tale Experience', Buffalo L. Rev., 3fi [1979), 459-5SŮ; 'American Lťgdl Realism ami EmpEncdl Social Science: The Suieular Case of Underbill Mooie', Buffalo I- Rev., 29 (l&BU), \$ň-22i; American Legal Realism and Empirical Social Science (Chapel Hill; Universy ůĚ North Carolina Pre«, forthcoming 1995). For my own small-scale studies of particular reihst figures anil [hemes, see Neil l>u^l>ury, 'Some Radicalism about Realism'? Thurman Arnold and the PoEErics of Modem Jurisprudence', Oxford J. Leg. Stints-, 10 (199Q), 11-41; 'Hoben tiaie and the Economy „i Leeal Force'. Mod. /.. Rev., 53 (1990), 421-14; 'Jerome Frank ami the ic^y of Legal KcaJÍ5m\JľrJ. Law and Society, IS (1991). i75-205;'ln the Twilight oT Legal Realign: Fred Rodell and the limits uf Legal CiiNquc', Oxford J. U^ Sta.is., H (1991), 354-95. A Sec Robert W. Goidon.'lrnsodui:(iOi1L J. WillardHurstand IheCommon LawTradLliOil m American legal HiůlojiOĚLíipliy', i-a^ and Society to., 10 (1975), 9-55 at (3 fn. 11. Gordon notes that mmmeulaMirs. oil legal realism have been inclined "i treaL proponents of the tendency 'as (rather inept) le^dl philosophers', [hereby undeiplityLng the considerable cstent to which nui*l reahits Were concerned will) legal doctrine and procedure. ä". The Evolution of o Mood 61 3 in itic process of judicial decision-making contributed significantly Eo the |- demise of realism. From ihe 193Us onwards, reali&E jurisprudence suffered 1. a scries of increasingly penetrative body-blows as American legal philo- sophers, tormented by the spectre of Nazism, became ever more determined to discover democratic values, rational processes* neuEra! ; principles and, ultimately, integrity in the law. Realism sufÍĽied y form of caricature in British jurisprudence too, owing largely (o (lie fact that, with the publication of H. L. A. Hart's The Concept of Law in lí)úl, rule-scepticism Ľamc gradually to he regarded by legal phiEosophcrs as little more llian a convenient if somewhat feeble sparring partner for the ;" philosophy of legal positivism.5 ; In iccenl times, and ;i)though based on certain fundamental differences, [-, the American jurisprudential tradition of uncovering values, processes and l" principles in the law and [he ríriti&h positivist tradition of Hart and his \, successors have crossed paths. This first occurred when Hart and Lon I-' Fuller debated the moral content o f legal authority,0 and it happened again Ír'' when Ronald Dworkin rejected Hart's so-called rule of recognition in í favour of the idea of principled decision-making.7 There is no need here to 1 ' re-tread what is, for most legal philosophers, familiar territory. Hut one i\ . crucial point should be noted. Although there has been more of an L emphasis of differences than a meeting of minds, between the supporters of ;- - and the detractors from legal positivism, supporters and detractois alike ':.'-. appear to he united on at least one matter: representatives of both sides of [;. the debate either implicitly or explicitly distance their own particular 1" perspectives from the caricatured version of legal realism. Placed in the - ' context of modern ptujicivist an[l posi Eivi s t-insp i red jurisprudence, realism, ^. caricatured, appears to be wholly unenhghtenmg, since it not only <■.;.; undermines the status of legal rules in the process of judicial decision- \'\' making, but also implicitly denies the credibility of any Lhcory of objective ■'K" or interpretive legal values. For the realist, according to the popular 'i" burlesque, the law is simply what legal ofiicials—usually judges—do when >*■ settling disputes; and what judges do, being human, is settle disputes on the basis of their intuitions as to what is right or wrong, just or unjust— 5 SeeH. L. A. Harl, The Concept of Law (Oxford: Claidldon Press, t%l), 134-5, also E. HlllltCi Taylor, Jr., 'H. 1_, A, Him'!; Concept of Law in the Perspective tit American Legal Reahbii)', Mod. L. Rev. r 35 (1972), ŮDŮ-2U. c SceH. L. A. Hart, 'PuŕilívĹhm and (he Separation oľ Law and Morals', Harvard L. Rev., 71 (Í958), JU3-ů2y; Jjjn U HuEler, 'PtisElivism and 1-iJetHy Ej La*—A Rcplj to Piufei^Or Hart', Harvard L. Revu 71 (1958)h 630-72; Tin- Mcratily of Imw (New Haven, Conn : YaJc Universy Pres-», 1964), \$,1-7A1; it. L. A. Hüilh reviev,' oi L. L, fuller, ľhe Motďily of Law* Harvard L- Rev., J!j(ľíf>5)F !2yi-9riFjinil, ic^ragenerüi Jhci]£iiOEiFDaviJLyuns, Ethics and !he Rule of Law (CanLbrldße: CaillbridĚť Uinversiry ŕrca, \9#4), 7fl-yí, ' Sec, Konalíl Dworkin, Taking Righls Strriottily (Londoci: Ducfcňoilh, 1977}, 14-13Ü. ů8 The Evolution of n Mood these intuitions being subject, of rourse, to the moods and whims of the particular jud^c. Hence. realism stands distanced bolh from positivism and from those critics of positivism who look beyond rules for other criteria of legal validity Hailing to contribute meaningfully to either side of the dialogue, refusing to connect the activity of judicial decision-making either to rules or to eslra-lcgíiľ criteria which might inform or supplement those rules, legal realism represent, for positivist and posivĚvi&l-inspíred jurisprudence, an antediluvian philosophy of legal validity, íi perfect illustration, in short, olL what jurisprudence used to be like, before legal philosophers hecame enlightened. Thus caricature lias \C\$ to suppression, to a cumny treatment of Tealism by modern legal philosophers as iJ it were a form of jurisprudence to be easily discredited. To atiemplto undermine the essentially one-dimensional view of realism as a straightforward philosophy of legal in certitude, however, demands the recognition of a definitional trap from which there is no obvious escape, A detailed assessment of reafisni FLquires, inevitably, an explanation of what it means to att;ich to particular ideas, themes, arguments and individuals the label 'realist'. Tf realism is much more than its common caricature, what precisely is it? No attempt is made here either to present an exhaustive account of what realism is Or to take stock of every figure who mijjht, by one criterion or another, be categorized as a realist. Emphasis is placed instead on what can only vaguely be described as the 'feel' of realism as an intellectu&f tendency—a tendency, that is, which evolved out of the period of academic and judicial formalism preceding it, TIiľ treatment of realism here as nothing more than a tendency, without rigid intellectual boundaries, is as much a matter of accuracy as of convenience. Legal realists, one of their number once observed, 'do not constitute a "school" in any useful sense of that term, for lEicy differ too much among themselves on t<)o many matters'^ The most eminent proponent and promoter of legal realism, Karl Llewellyn, likewise hesitated to conceive of realism as a single school of thought. 'There is', he insisted, 'no school of realists. There is no likelihood that there will besuch a school.1"1 Rather, he preferred to conceive of realism as 'a move/wen! in thought and work alitmt law\" Others have followed Llewellyn's example, s On the futility Ut Hying to compile a precise hit .it rcalisfs, d Twining, supra t\. '2,311-2. " Walter Wheeler in Twentieth-CcnUi i y Am cri f-v--Ma jor The ine «mi Developments1, Jnl- /.[■£. Edin--,36 [10ŔÍÍX 141-80 ai 4i2. Jcrurní Fr^ink,' Experimental 3uri;prLn1 eilce anil tlie New líeaľi Congiess&nal Hecorä, 7SÍLEH), 12412-14 at Í21U; ami cf- also Ucswcllyn, sttjim n. It), 1214 fli. 3i u Hesscl h. Yillcma, 'Amcricfln Lejr^l ftfflliiin in äí^rrosjiccť, Vftrultrblit L Rev., ŕ4 (ľluO), .Í17-30 iit 1?(1; and sec alio Leon (jjícn. 'Innoccm MiL.rf|>re^nntlnii', Virginia L-ftŕv . Jy (103-^, 242-52 ÍSí//y in liuerpretaUpn (Jrid Social Reality (Manchc-iter: Orcimcr, ľlill) 71) The Evolution of ti Mood his ideological or philosophical views, believes thai íl is important regularly to locus attention on the law in action at any given time and to try to describe as honestly as possible what is to he seen.'1* There were, inevitably, realists who did not quite share this belief; just as there have been lawyers who. [hough not realists, have subscribed to this belief quite assiduously.1T Logomachy ovei 'legal realism', it seems, is a cul-de-sac.bli In an inspired study of American legal theory, Robert Summers jettisoned the term 'legal realism' in ;m effort to introduce into jurisprudential discourse a comparably less vague nomenclature. Summers argues that it is more appropriate to conceive of a tradition oi 'pragmatic instrumental ism' in American jurisprudence, "ľhis term, he claims, depicts accurately the philosophical premisses underpinning the early twentieth-century jurisprudential reaction against legal formalism. 'Legal íealisnť, in contrast, lacks terminological precision.1'' In arguing as much, however, Summers concedes that he does not anticipate a straight terminological swap. The upshot of this is a thesis somewhat less persuasive than it first appears. While, within the specific context of his own study, Summers offers convincing arguments for dispensing with the term 'legal realism", these arguments rather lack validity when applied to the use of the term by others The reason for this hinges upon his conception of prismatic instnimenlalism. For Summeis,. this term is oi necessity defined by the ideas of those whom he considers to qualify for the title of pragmatic instrumentalist.2*' Yet, by his criteria, various figures commonly considered lo be 'realists' would not in fact qualify for the title. Moreover, at least three of bis so-called pragmatic instrumentalists—Oliver Wendell Holmes, John Chipman Gray and Roscoe Pound—are not usually described as realists, but as 'proto-rcalisLs'. While it is with some justification that Summers criticizes the term 'realism' as descriptively inapposite, his own conception of pragmatic instrumental ism denotes only a highly circumscribed group of realists and realist forebears. Some realists '" lining, supra lU 17., 74. " Sec e.g. Guiilo CaljlicsL, A Common La<* for the Age >?i Shuntes (C* m bridge, Mass.: UjíYírdUmveíSLtyPnssv W&2\ passim and tap p. ISO. (As a schuEar, it ii iny job tu luak in. dark planí* .md tiy to dfiscrihu, dr. precisely as 1 can. what 1 sec1), and tf- also, in a similar vein, tiuido Culabiesi, letter lo Caul D. CaniJigton, in L "Of Law and the River", and of Nihilism ami Academic FfeedoLii\-ŕ«/ Leg. Etfuc.,35 (iQító), 1-26 at 23-4- IH WLtffid E. Rumble, Jr., American Ugai Realism: Skepliri™i, Reform, and ihs Judicial Frowst (Tihdcj, NY: Cornell University Picss, lSiift), 45. LQ Roberl $. SuminťiS, ifístruineitíalam and American Legal Theory (Ithaca. NY: Cornell Umversity Pre«, 19K2.), 36-7. Fol it similar rtatir^aÍLOn ton. černily 'pra^Matic intrumeiiť alisni", \ev Twining, supra n 2, 339-40 fn. 2fl. ** Summen,, supra il. 19, 23. Kummers lists eleven pragmatic InsErumcnEaUsts: Jolm Chiumau Gray, Oliver Wendell Holmes, Jr.. Join. Dewey. Hustot Pound, Waller WheeLci Conk, Jiistjpi) BilliJmrfl, Ünderhill Mooie, Herman OLijiliant, Jerome Frjiik, Karl I tcwctlvn and Felis Conen Tlli£ list. Summer, adds, is not intended to oe CSllaiiMive The fcvoiution of'i Mood 71 were not pragmatic instrumentalists, just as some pragmatic instrumentalists were not realists. And whereas 'legal realism' can be criticized as a hopelessly broad catch-ail category, 'pragmatic instrumental i &mT, when lemoved from Lfic specific confines of Summers's own project* proves rather too limiting and idiosyncratic lor common usage. So, where does (his leave us? The term 'legal realism' is rclJiined here for two specific reasons. First, despite the criticisms of Summers and others, it rrjiiy be argued that the merit of the term 'realism' lies precisely in its generality. 'Realism' describes accurately what was possibly the single unifying ambition of so-called realists: namely, the commitment to candour, to telling it---whatever 'it' happened to be— ;is it is.9-1 Certainly this commitment to candour is neither the sole province nor feature of realist jurisprudence—if this were ail lhat realism was, we would indeed all he realists now. But although candour per Jt hardly serves as ;i criterion for demarcating realism as a discrete intellectual tendency, its í herna Lie importance rests in the fact that there emerged, during the early decades of tElis century, a peculiar 'style' of candour—one which, though it has since been emulated, did not exist in die United Stales prior to die advent of realist jurisprudence. The second reason lor retaining the term 'realism' is HltJe more than a confession of resignation. For betle r or worse, and despite the reservalions of some so-called lealisis, the term 'realism' stuck; and it seems, now, that it is here to stay, hi his despair over the ambiguity ot the term "literature', Terry Kagleton once suggested thai it should, in his writings, be considered placed under an invisible erassing-on t mark, as if to indicate that while the těmi will not really do, we apparently have nothing better with which Eo replitcc it.22 Perhaps there is good reason to do the same with 'realism'. Yet one should not blow this matter out of piopoition. Our purpose here is to analyse an intellectual tendency. Whether or not that tendencv was [liven Ihe conect name—whatever thai could mean—seems hardly of crucial importance. <;OM1'OUNDINO A CONTROVERSY 'I hat legal realism 'happened' seems now—if, indeed, iL did not always seem—an inevitability. The claim that formalism is not working became, for many early [wenlielh-century Ameiican lawyers, something of a 21 Ol, III tlie wunKuf Pound, the enm IllEltltent to the 'aremate recording of [IiuLľs d-; Üiev .íle'. Rustra Puiind, "[lie Call fora Reahil Juri^pruiicticc', Harvard i- /íŕľ. 44 flÔ3ľl (#7-711 a( (M7 ire also Edward S R.iliin-nn, 'Law— An l Jmdentlfic ScjlikV Yale ff 44 {1934), 235-07*1257. ' ' 32 Tťrry ľľaglcton, LttCttlry Theory: An fnlrndiirUon [Oxford; Bläi;kwdl, ľJJH), H. 72 The Evolution of it Mond truism. However. the question of precisely how- or, more importantly-what il means to say thai—realism 'happened* has never been answered satisfactorily. Realism did not simply come about overnight; its evolution weis, rather, a hesitant one. Yet, there has heen a tendency io try lo conceive ol the evolution of legal realism in terms of .some triggering event, without which—so the assumption seems to lie—'Ihe realists' would never have come into being. The fault with this argument is that it is premised on a name-tag approach to die history of ideas, as if the gradual movement away from legal formalism would have been an inconsequence—as if it could not properly be said to have occurred—if someone had not coined a name lor il. That 'someone' who came up with the label of realism is commonly considered to be Karl Llewellyn;" and indeed, in the endeavour to locate a point at which le»;il realism began, there has been a tendency lor commentators to hone in on Ihe famous Llewellyn-Pound mniroverse of the early 1930s. The story is something of a commonplace. Having, in early lE>31tM accused an unnamed body of 'realists' of demonstrating an exaggerated faith in empiricism and social science while simultaneously neglecting—if not. at times, denying—ihe legal significance of rules, doctrines and principles, Pound quickly found himself al loggerheads with those who had made the most effort to popularize anti-form a list jurisprudence. At this point in time, the realist centre-stage was already dominated by Llewellyn and Jerome Frank. Both had just written books which were to become landmarks in the literature of realism,25 and bolli fell lhat Pound had caricatured their ideas.215 Llewellyn felt particularly dispirited: given that Pound had previously accepted his academic criticisms with good grace.27 Thus it was that Llewellyn and Frank set about composing a rejoinder to Pound, eventually published in Llewellyn's name alone, in which 'twenty men and ninety-odd Li) lea' were put forward as 'representative'23 of 'the new ferment*2* in jurisprudence. LleweElyn and Frank's response is as much an exercise in legal realism as il is an idiosyncratic description of it. Term en f, Llewellyn begins, 'is abroad in the law. . . , It spreads. It is no mere talk.''1" Those involved in this fermenl "are folk of modest ideals. They want law to deal, they 23 .Sice Twining, supra n. 2. 3Ů3: 'Karl Llewellyn i^ generally regarded Li Llie leading internal intcrprctCi Of llye ReiLM Movement He neillieľ coined Eii£ term nor founded ihc movement, bul he m jckniiwlcrigcd a$ its fust labeller and pnNid!,!/ 71 ilea Fnimrf, sitpffi ľl. 21, passim. 2'' Kail N. Llewellyn, The RramhU Rush: On Our Ltnv and lis Study (New York. Ocraria, 1951 p rc|ir. ni nrig. =rune.nji cdil. 1930)- Jerome Pr^nl., Law and tl/Ľ Mi'dtni Mind (GlDuraler. Mhm.: Petel Smith* 1970, orifj- fmbl. 1930). ** Sec Twining, supra u \Z, 72-3 -1 Ibul. 71 JS Llewellyn, .Hipifl n 1H.1277. M Ibid 122=. ^ Ibid 1221 The Evolution of a Mood 73 themselves want to deal, with things, with people, with tangibles . . . not with words alone. . . . They view rules, they view law, its means to ends.131 While sharing 'certain points of departure'.^ these so-called realists 'are not a group\" 'They differ among themselves well-nigh as much as any of them differs from, say, Langdell.,33 Among the realists, individualism is the Older of the day: 'the justification for grouping these men together lies not in lhal they arc alike in helief or work, hul in that from certain common points or" departure Ehey have branched into lines of work which seem to he building themselves into a whole, a whole planned by none, foreseen hv none, and (it may well be) not yel adequately grasped by any.h" A collection oi" somewhat disparate legal academics, Ihe realists were, according to Llewellyn, united only by their apparent—sum climes inadvertent—acceptance of certain shared premisses. The list of twenty realists which Llewellyn and Frank offer in response to Found is but a selection and hy no means intended lo be exhaustive. They 'had hoped to be more precise . . . There are doubtless twenty more. But halFis a fair sample.'1'' Certainly, as a sample, i I iva<; sufficient to stymie the unsubstantiated allegations made by Pound. In structuring his critique of Pound around the names on the list, furthermore, Llewellyn invoked two exemplary realist motifs: the imagery of trial court iiicE-finding procedure and the methodology of empiricism. Pound, according to Llewellyn, was to lie tried by fact.''7 The question was: were any of Pound's iillcgations Mibstantiated by anything which any of Ihc listed realists had ever claimed? Trie 'evidence' discovered in Pound's favour turned out to be scant.35 But what was most significant about Llewellyn and Frank's retort to Pound---what, equally, has by and large been overlooked --w;ts not so much the wholly predictable conclusion that they reached, but the manner in which Ehey purported lo reach it. Llewellyn and Frank's counter-critique of Pound is period-piece realist social science. In compiling their list, they selected such writings as seemed lo speak most directly to points of legal theory, or most likely to contain evidence on any of [Pound's] allegations'?5 They also '[wjrote to the men, requesting from each his Suggestion as lo where he had expressed himself along lines which Pound was insisting typified realism.4" Pound's observations were then compared with Ehe sample material which Llewellyn and Fraiik had compiled, and 'the results oJ the test"11—as if arrived at in a laboratory—were put forward as a 'scientific' refutation of Pound's critique. By detailed use of what was—when all is said and done - 31 LlĽwcHyn, supra n. 10, 1223 J! Ibid. MM '' Ibid. 1234 " Ibid 1235 '• Ibid. 1225. '* Itnurie, and hy rreonstructLna private disciiursc we can di&COVei real authorial intention', For .i CC-nst rast itl^ -and, In my mínil, moiC convincing.- view, sceDiimmick 1-JiCapra, Rifhlrlkirif* InidicLtual Uätrny: I'čxIs, CoritctíS, Longitude (Ithaca, NY: Comclt ljnivcislty Press,, 10S'S) The Evolution of a Mood 11 delmiiive bre^ik with the past. R naivst jurisprudence, für Llßwellyn, Wíis d is tiii Cl not only from the Ira dl Lion of legal lovrnalism but also from the pFOto^reaiisl initiatives of Hofm.es, Cardozo, Cray and, of course, Pound. None of Ihcse 'pre-realists* featured in either the published or unpublished ■versions of Llewellyn and Frank's sauiple lists/" None, indeed, was conceived lo be pa.it of Lhe new ferment, Precisely why not remains a mystery The suggeslion—intimated, in fact, by Pound-1''—thai the difference between the pre-rcaliMs and lbe realists was to some degree a generational one is rather reluted by lhe fact tliaf certain of lhe realists nitmed hy Llewellyn and Frank were almost ai old as Pound himself/11 L is odd, too, that Llewellyn and Frank should have neglected the pre-rĽalists while in clu d inj; in their sample Nits—parlietil a rly the unpublished version— academies who were almost as obsenre in 1931 as they are ioduy/1 Some of those listed were only 'realists' hy virtue of their association with Llewellyn/2 Most of those listed would nol have applied the label to themselves,''-"1 In short, tlie sample of realists vj-.ís a wholly arbitrary affair, the concoction of which appears f o have served pi im arit y to banish the past from rhe present; io ensure that there existed a cut-off point, however fabricated^ between the pre-realists. and the realists. Once we move beyond this cnt-off point, the task ol" understanding legal realism as an intellectual phenomenon seems rather more conceivable. U becomes elear thai there aie no jjood historical or conceptual reasons for demarcating the pre-realists Jrom the realists, and that realism should, accordingly, he regarded as the continuation ol a particular tiend-namely, the growing diss atis facti on with legal formalism— rather Lhun as the beginning oJ something substantively new. Bven Llewellyn acknowledged thai, by the early 1930s, lhe realist spirit had been in lhe air for well ovei a deciide. T-Iis basic failin« was that, white he recognised that lhe pre-íealisťi shared in this spirit, he regarded then' ideas as somehow removed from the new scene. They were inspirational—in Holmes';: case, crucially inspirational—but ultimately distant voiees. - Those commentators who resist according especial significance to the Llewellyn-Pound exchange have attempted generally m conceive of realism in rather broaifer terms lhan have Lhoüo who treal the exchange as somehow foundational or indispensable to any proper discussion of the .subject Grant Gihnore, who had no taste aL all for lhe Hčwellvn-Poufid *■ Huti, ntpru n. 47.1JŮ7-0- 59 ľíilHld, lupra n. 21, 697 (charaťt&irang Icgül realists jí uľtIílíh of 'our y^nnyei W-hď Of liiw'J. *" 5íc Hull, iiiftnl n Al, 'b"4- Twining, jff/íra il 1^. Id, -HI m. 25- M Sľc, m raUKulur, [lie jietiplc: [(iscussed Emclly by Hnl|L Supra i>- '17, %t- *= Hull, EliicJ -ib\-2. " Ibid IJ57. 7R The Evolution of a Mood depute,64 once suggested thai 'realism was ihi? academic formulation of a crisis through which our legal system passed during the first half of this century'.'"'' Realism was not, in tact, an exclusively academic affair. It was, neverthelessT very much a response to a 'crisis', even if that crisis was rather more complex than the one which Gihuore describes. According to (jjlmore, the crisis was fairly straightforward. With Hie initiation of ihe National Reporter system in the ÍS7Cs, the West Publishing Company undertook to publish íill federal appellate anil some trial conn opinions, as well as higher state court decisions, throughout the United States, liy the end olL the nineteenth century, Lhe reporting and printing of cases had readied nightmarish proportions. The avalanche of reported decisions not only made it impossible for lawyers ever to be fully informed, but also resulted in the discovery, with increasing frequency of m consistencies and conti adic Lions among the precedents upon which the profession relied,^ This, Gilmote argues, was the crisis to which realism attempted to respond. Yet a more obvious response Lu this crisis came from a different, distinctly Lpngdcl1 i an-inspired, source. From its inception in 1923, a primal y goal of the largely Harvard-stalled Restatement of the Law project was la eradicate unnecessary complexities in legal doctrine. It was an initiative devised precisely to meet the 'crisis' repiescntcd by the Hood of reported precedents. Kealism, m contrast, represented not so [mich a response to this crisis as -t somewhat resigned acknowledgement that it existed. Indeed, if anything, legal realists tended to treat the ever-burgeoning body of published cases as less of a cause for alarm than the Restatement project itselt. The 'crisis' to which realism responded was much broader than Lhat which Gjjmorc describes. Very simply, the crisis may be characterized as the persistence, into tlie twentieth century, ol legal formalism in both of its guises. The ways m which legal formalism represented a crisis, and the ways in which so-called realists responded to this crisis, were diverse, and to make any sense of legal realism and its intellectual legacy it is necessary to attempt to untangle that diversity. This requires not the search for a key event which may have started the tealist ball rolbn», but rather an examination of various lattors which appear to have contributed to the evolution of realistu as an intellectual mood. The most general and important factor to be taken into account is the manner in which, from the earliest years of this century, the insights and the methods of the social sciences began to find thsir way into the American law schools. Social ■■' SeeGraiitUilmLíiů, Tftd>lřWťr/i4rttíi"mi/i/^w (New Hjv«!, Conn.: YdleUnivciELLy ^GiJlt Glim»«, 'L^! Keil™«: Us Chilw *nů Ciirr.', Yale L.J., 7fl (196i), 1JÍ7-4S at The Evolution of'a Mood 79 science formed a crucial backdrop to legal realism, though the manner in which it did so is far from straightforward. MAtilNti WAY FOR Till: SOCIAL SCIENOFri Formalism left a void in American legal scholarship. The Langdelliau legal scientist had a clear objective; to reduce legal doctrines to their core elements and thereby remove from the law all unnecessary complexity. But what if that objective were to be achieved: what then, beyond teaching, would be the raison d'etre of the American academic lawyer? John Henry Schlegel has suggested that the Langdelliau task of systemalizalicm, had in fact been realized by aronnd the time ol [he First World War; that, by-then, '[t]herc really wasn't much more to do'.67 In one sense, this is a curious assertion. American law, both common law and statute, continued to proliferate and become ever more complex through-out and beyond the War—to the extent, indeed, that by the 1920s the American Law Institute had turned its attention to the matter of restatement. Clearly Jhe task of systematization was not accomplished. Yet in another sense, Schlegeľs remark rings true, for hy the early decades of this century Legal scholarship in the Langdellian mould had hceome somewhat stale, Tlie fundamental legacy oF Langdelliau formalism, was a decidedly monolithic conception of lejiJil scholarship; indeed, the criterion of good scholarship—painstaking arrangement of principles with a view to demonstrating the scientific underpinnings of legal doctrine.—hail been established by Langdcl] himself. The only significant choice open to the academic lawyer in the Langdcilian tradition rested in the matter of which area of Jaw to reduce to its basics. The mood of legal realism evolved out ol this academic malaise."''1 Realism signified discontentment not just with formalism as a distinct jurisprudence but, still more fundamentally, with the fact that formalism in its LangdcNian guise rather limited the range of intellectual activities that tlie aciidemic lawyer could legitimately pursue. Realism represented the feeling that it was time to inject into legal ieseareh at least a semblance of the frisson that the case method had already brought to teaching. For all that realism constituted a general sense of unease concerning legal formalism, however, it could not be described as an outright distaste for scientific methods. Many so-called realists were happy, in principle, to embrace the Juhn Henjy SdiLiľgd, ' La ng., B (llfJfil, 605-23 at 60S. '" Waller Wkcelůr Cook. "ľhc Luteal and legal Eases of Ehe Cmittití oil.nw*', Yate L.J., >.! {1924), 4S7-BS at 45R. Ti Ibid. 475. r/ Herman Oliphdnt. 'A Hcturn k» Stare Ucdhis'. Am. ftar Aswtc Jul., 14 (1*)28)t 71-6, 107, 15E*-ů2at 159. 73 Hessel E. Yntcrna, The Honibnok MclSiod and iht Conflict (if Laws', Yrfr L J., 11 (192S) ■1GS-83 al4SÍ/JurÍ5;rruilcni;eand Mctflphy«C&-—A'lYian^iilJľl^irchjuíTiLfcncc', Vafe I.J. 5f (1950), 273-90 at 273. See also Simon N. v&rdiin-Jcineh. 'Coot, Olipliaul and ľ-Yntcmsi: Tlie Scientific Wing ůí American Lteai Realism', Dolfiomie L.J., 5 (1979). 3-*4, | 249-SO; Anthony Kronman, 'Jurisprudential Rciuoiiscs iti Legal Realism', Curnelt >- Rev., 73 (1EHJ8^Í>.S-Í0 al33B. {'[rlhc^cinmc branch ufrcjllsniEoiigliĽioiealiTc Iungíl^ľsví^Lin '_ nf law. lhu[ by abandon»]]* the irtca «í law as an autonomous nr independent discipline.') Uralem dni [hol represent the first attempt lo tum America]] niilspnidenu: ,ato an appUed ■ huence. Kor an c-ůriier attempt, see llie collection of essays. Ccttirnlizal'fon aid lhe Law \. Sclenlifit Legal fidnculion: An lllustraliun {with an introduction by Melville M BigetotV, I Boiinn: Linie. Brown & Co. lyijlj), | 71 Sec c.y. Herman OlipKam, Tacts, Opinions, am] V^ll]e-Jud^lTlíL^lť,,, T/rur-, L. Rev., 1U i 0^2), J27-30 ni 127 fil. l,('Mu«,twe.s'a.L(]ľl libraries snore ecnLimesnnEil [iliosc who hve h> F The Evolution of a Mood Kl viewed the prospect of bringing scientific mcltiods lo jurisprudence wiLh extreme caution. 'When it comes lo exploration and lentaiive development of. . . jurisprudence as - and R^J FiDpejtyMíirtgaůeá', Yale L.J., 27 0<3?5), AÍH-7J5 j[ 7in. 71 Karl N.LlKWiillyn,'The Theory t)f I cjpnl 'Sciancf" \Narlhľarvlina t rte v 2ft(]*)ů[) »SI '" fbi,(. ľ?! . R.^in^n.jp^., n 21,23í. "■ Robinson, ŕJÍ,™ n 21,^5 IL"d-?37- ■"' Jbíd.ľífM) 82 The Evolution of a Mood dictated by philosophical conceptions that somehow stand abcvĽ or apan from the conceptions of natural science .BT The task of the modern lawyer is to engage in a 'continuous constructive effort to solve legal problems by Lhc use of the method and viewpoint of natural science'; indeed, 'the established natura í sciences must be scoured for facts and concepts applicable to law'.37 Only thus might lawyers 'become leaders in social thinking instead of guardians of outworn ideas'.03 Yet the import of Robinson's assertions is not entirely clear. This is not straightforwardly ;in appeal foľ a return to source, for lawyers to become initiated in the ways of natural scientists. It is, rather, an appeal for lawyers to become familiar with the methods of the natural sciences specifically through the methods of the social sciences. At core, Robinson's argument- -ifn argument which harks back explicitly to Pound—isthat lawyers should become adept at general social scientific method, 'There is greatly needed a social engineer who will apply that method over a wide front and in the practical solution Oi urgent social problems. There is greatly needed a social engineer who, through the application of the best available knowledge, will teach men new and better ways of meeting their problems—of settling their disputes. There is no doubt of the opportunity. There is simply a question as to whether the Lawmen will grasp it or whether the opportunity will, itself, create anew type of public servant—a real serial engineer.sM Semi-prophetic allusions of this nature landed Robinson and others in hot water with those critics who suspected that the lealists' social servant of the future would be a ruthless, undemocratic" technocrat. At another, more obvious level, however, Robinson's argument is decidedly les.s controversial. The appeal to science was an appeal not to natuial science but to social science—for the use, that is, of scientific methods in the study of law in society. While the likes of Cook, Oliphant, Y n Lenia and Robinson were prone to drawing affinities between legal realism and the methods of natural science, it was to the social sciences that they in fact looked for inspiration. The realist appeal to and identification with natural science has about it a distinct air of credibility-seeking. Legal realism as applied science was, in fact, jurisprudence conceived as social science. SOĽIAL c-ĽIJiNťť AND THE LAW SCHOOLS Vet even this claim must be subjected to critical scrutiny. 'There has been a tendency for eommentatois simply to assert Father than lo explain the " Robinson, sttpm n. 21. 245-r.. ** Ibiit. 24Ä. "* Ibid, Zftn-7 "' ibid. íů7. The Evolution of a Mood H3 interaction between realism and social science. It is beyond doubt that a good majority of those writers who came to be associated with realism during the 1920s and 1930s were attracted in one way or another to the social sciences. This much is clear from the emergence, during those decades, of Columbia and Yale as the two great bastions of realist thought. Two years after his appointment as a professor at Columbia Law School in 1921, Herman OJiphanl wrote RirmaHy to the president of the University, outlining a proposal for the reorganization of the School curriculum—a reorganization which would demand of the faculty *a great deal of concentrated research on the interrelation of law to the other social sciences1.80 The proposal marked the beginning of a power struggle bcLween those who, with Oliphant, believed that the Columbia faculty should devote its eneigies exclusively to the task of turning the School into ji major centre Jor research into law as an aspect of social organization, and those who believed that, instead of emphasizing only research, the faculty should devote equal energy to the task of turning tbc School into the leading institution for training people for public service in the law. Oliphant and his supporters ultimately Tailed* in their quest. The stiuggie between the pro- and anti-Oliphant factions culminated in 1928 with the appointment of Young B. Smith in preference to Olipliant as dean of the faculty.87 While Smith himself accepted, within certain limits,33 the desirability of a social scientific approach to the study of law,*5 he 'was unacceptable to those who thought the Law School should devote itself exclusively to research1. Yet although the initiatives of Oliphant and his supporters had made only marginal ground at Columbia, an important and lasting precedent, an alternative to the conventional law school curriculum of the time, had emerged, Columbia ol the 1920s represented a tentative departure from the Langdellian world-view: law could be studied not merely as a collection of logically classifiable, interconnected principles, but as a means of social control. The funilamenLíil tJie&is which emerged was this- Since law is a means ol social runlrol, it Ou^bt So be studied as inch. . . . Columbia proceeded at once to put this "'' For examples, see Thomas W. Beclitler, 'American Lej>a[ Realism Rcvaliiatccľ, in T. W Rech Her (cd ), Law irr a Social Context f Aber Amironon IJoiioitiuig PiofšSSOf Lot\ L, Fuller (LJordLeclit: Kluwei, IEJ7Ö), 1^13 at 9; Ralph J. Savaiese, 'American Legal Realism', Hvuslan Ĺ. Rľv , 3 {1965], 1JÍ0-20O u! lfil, Wullj^nL. Fnedrndiin. I^gal Theory (filh cdn. Li.ndun: Slcvcnn & Sons, 1967}. 299. ^ William Nelson Cromwell Foundation, A History of the. School vf Law. Columbia University (New York: Oilumbw University PEths, 1955), 299. ^ Fur Jin account ol ihc events, sec Twining, sapm nr 12, *\]—55- ** On Smith's markedly qualLhed enthusiasm fot a social scienliliü aperen.]] to die siudvot taw, sec Stevens, supra n 45, f 30-40; Twining, .supra n 12, 4ft. ^ Cromwell roundBtEoTi, ^apii m. Sí>, 3IJ0, ™ ibid. 3tí4. 84 The Evolution of íi Mood programme into practice reorganising courses along functional Hues, reinfecting (he raculcy by (he appointment of spetialiiLs. in philosophy, business, a"d political science, and plunging wi1, 337. lh'J See e.eneml'Ey Amin., "ľne Johns Hop-kins IeisIUleťc fen (he Study [.ľ ľ aw', Amrricun law SclrtoTRcv., 6 {Vm), 33Ů-0; Lůoei C MjtaJkiII, 'liic iflStitule uf I..lw, lohrts Hopkins Univecsily', American Scholar, 2 (1933), 11^ 86 The Evolution of u Mood Givťin Mich Ircctíom, the Columbia emigres each began their careers ul Johns Hopkins by selling aboul completing the various projects upon which tbey h;iJ embarked at their previous institution. Only once this-was done did (he lesearch programme of the Institute begin to aequite an identity of its own. During the years 1931 to 1933, (lie member!, oľ the Institute produced ii scries oJ" detailed, mainly statistics-based studies of judicial administration and civil litigation, focusing on öeleeLcd state courts in New York, Maryland, and OhiotEt" The prodigious output and careful co-ordination of research during this period was nothing short of remarkable. Without the burden of having to run ;i traditional law school, the members of the Institute were able lo devote almost all of their energies to the pursuit of scholaiship rn the form uf empirical social science. The bubble, however, was soon to burst. Without either students or alumni, and without the backing of a major foundation, the Institute was forced to rely on just about any organization—usually law firms— willing Lo play the role of benefactor. The cost of this dependeuce was a frequent pressure to produce research with an immediate 'piactical value'. Aeadcmic integrity was, accordingly, rather compromised at times by the need for hard cash. And it was precisely this need which ultimately brought about the death of the Institute, As Ihc Depression years rolled on, funds quickly dried up, and by tne early 1930s the Institute was iorcetl Id dose."" Yale, however, was a diilercnt story. The appointment of Ruber! Maynard I-Iutchins as dean of the Yale Ijiw School in 1927 marked the beginning of a new chapter in Ehe School's histoiy. Having been generally disaffected with teaching at the School while a student, Ilutchins—still only in his late twenties when he accepted the dcanship—set about breaking with the traditions of the School's rather conservative past by promoting novel methods of teaching, establishing new programmes for research and, most importantly of all, securing a number of controversial appointments to the faculty. Columbia, throughout the 1920s, had built up a strong facility of social science-inspired lawyers; and even though the onginal vitality of the Law School was diminished with the resignations of 1928, Dean Smith was quick lo lepiace lost talent.I|l} Throughout this decade, Harvard too enjoyed a period of revitaiization as I-angdcllianism found a home at the American Law Institute. I-Iutchins's primary ambition wa^ lo bring to New Híivcn a standard of academic distinction comparable with that which had been established at both Columbia and Harvard—a 11,1 For a itkcns.si.m dt elm publications of rln= John* Hopkins Institute, sec inhn W JuhiisOJl, American Legal C/iliurc, 1908-Í940 {Wcslncrt, Conn. : Greenwood Press, 1981) 1(11-2. ll|? See Sleeps, supra n. 45, Híí '"'' Sec Crtimwell Foundation, stipra n. $6, 310-11. Tiie Evolution of a Mood ^7 standard which, he believed, Yale had at least glimpsed in the work of one of its earlier professors, Wesley Newcornb Hohfeld.1114 His strategy was to set about creating a faculty which—for all its distinctness —would essentially be an extension of the Columbia model. If you rim over their articles and hook reviews, in the bound volumes o J the old law journals, you can still catch an authentic whifi' of cordite.1™5 Thus wrote Eugene Rostow, dean of the Yale Law School from 1955 to 1965. The cause for Kostow's leminisĽence, the Yale realists of the 1930s, is one of the most b-tmous sagas in the history of American jurisprudence' Reduced to its essence, it is a story about the efforts of a group of men, professing a common distrust of the doctrinal orthodoxies of the time, who were prepared to aiticulate their sense of distrust with au unprecedented, iconoclastic fervour. The story has been told many—perhaps Loo many —times, and there will be no attempt here to recount it again. Worti] considering briefly, nonetheless, is the inspirational but short-lived dĽanshipofHutcbins, for it is possible to discern, in his contribution to the development of the Yale faculty, an equally short-lived enthusiasm for the 'seientitic' ethos—an enthusiasm which exemplified the difficulties underlying the endeavour to introduce social scientific methods into law. That Hutchins played a crucial role—indeed, the crucial role— in setting the scene for the emergence of realism al Yale during The 19311s is, in a sense, ironic, for by the time that decade airived, he was already part of tlie School's history, having departed to the University of Chicago in 1929. During his short deanshipjic had achieved a great deal. Recruiting heavily so as to double the siic of the faculty which he inherited from the outgoing dean, Thomas W. Swan, Ilutchins at the same time reduced student intake so that, between [927 and 3ÍÍ23, the n um h er of students at the School fell from 422 to 318. 'The stated purpose- of the reduction', according to his hiographei, 'was to free his interdisciplinary faculty from routine instruction so that the Law School could be cor veiled into a research institution ä'" SccSchlcgcl/FiomlfjcYdlcnipcriíľTn^'.jr^rflEi^, 477. HohEcEd eailie írernSĽiriforíl I« Vfllr m ]yi4. He died m 191 K. F-ľc is best reiiteiicbtreil for hi? qnasL-stienLific thcoij of 'jWü] correlatives' ,-nd 'jural opposite' whidi, he argued, constitute ihe lowest COinmun denominators of the law. See ijeiicrdlly ihc po&tllLLillOut collection of essays: Wesley N. Jíohfeld, ftmitaniĽntai fegd Cn/icfpikrns ux Applied in Judicial Reasoning fed. A L. t'oibin, Ke» TLven Conn.; Yale University Press, lUo4) o&p. 63-4 LIJ> t-.Ugcne V. Rostov., 'American Legal Realism and tbc Sense of ílie Profession'p Hoeky hloutttßmL. Rcv.,14{í9tŕž)t 123-4-Eíat \lf>. Sec alsn his Tlie Peahst Tradition ill American Law1 m A.M. Schlesinger, Jl. anil M While als., Paths of Amcriran. 'IhoUehl {Bolon-íTwunTiiiMi Mifflin, IEW3), 203-1«, 55fl-y *t 709. 1 Muckof tlieaeneraUfrcratiircoii^ rraliicn i£ little m.ircihjiri ihc StOiyoi the Ynlc I,aw School Of Hie early l^Hs. Ttl&wiirlis hy Kalmen unii Schlegel, :,uprn n. 2, „ire singula]^ important in rh.it llity reist such a characterization. SB The livithttion of a Mood that gave selected sLudcnts an appreciation of the underlying principles of jurisprudence as well as ;in" understanding of how tbc law actually worked.'"1"' While he could not pTOvide the paradise of a pure research institution as was on offer at Johas Hopkins, Hutchins was determined to provide the next best thing; and it was In this end that, in 1929, in collaboration with Ihe then dean of the Yale Medical School, Milton C. Wintcmita, with the support of the president of the University, James Rowland AngeU, and with the assistance of a substantial endowment from the Rockefeller Foundation, he set about establishing Ehe Institute e>t Human Relations, a joint Law School-Medical Schnol venture, devoted to ins 'tlie development of co-Operative íesearch m all fields relatmg to man The Institute was the crowning glory of Hulchins's short deanship. 'When the Vale Law School discovered that Ifjw was a social science/ he observed, 'it found (bat it needed the help of people trained in the social sciences/'"" The Institute—dedicated to 'hrcak[ing| down dep art menial harriers, bringing together men of common tastes and inclinations, placing at the disposal of each the jesourccs of the other1'10—was intended to provide the Law School with just that help. The Columbia refugees, Douglas Find Moore, along with Hutchins and his former teaehei and successor to the dcanship, Charles E. Clark, were some of the first to embark on research under the auspices of the Institute. Hutchins al^O secured the appointment of Donald Slesingcr, a psychologist whom he had originally brought to the law faculty to collaborate with him on a scientific analysis of the rules of evidence,'" as executive secretary of the Institute. While the Law School and Lhe Institute remained administratively and financially separaEe, an important academic link had been made which provided the faculty with the perfect opportunity for the social scientific study of law; and although Dean Clark would adopt a rather less positive view of the InstiluLc during the 1930s, its continuation in landein with Lhe faculty was integral to lhe growth of realism at Yale,"2 It is baldly 1117 Harry S AsSimore, Unseasonable Truths: ľhp Life of Rofarl Maynanl HiiwhiKi (Boston! Little, Ttaiwn &. Co., 1U8*), f-S |IJ,: Rubeľ! M. Huíchin:,, 'Ail äíi&titLLŕe of Human Relations', American Jmtrmtl Of Sonolngy, 35 (I9?y), i&7-J>3 jL 192. im ltaid. 100. "n Itirt- l£H- "' Sec Robert M- Hutchins and Donald SlcůiiLuej, 'Son«-. ObservalUHii on lhe Lav,1 ůf Evidence', Columbia L- Rev., 2fi (192Í), 4-E-^O- 'Some Observatmni Oil (lie law i,i Evidence—thu Competency ní Wiinc^y', Yale i-J-y 11 (192S), 1017-2A; 'Sumu Obscrvn-ii.inj, on tlic T.^w of Evidence—Memory'. Harvard L. iff'-, 41 fl^), H*if>-73; 'Some Observations on die Law of fiviueuce: State ol Mind tth Issue', Columbia L. Rev., 21 (1929), 147-57. 112 SeeCliattos K. Clsirk, Th6E4ucatkiTiiil*i[bi3 Scientific. OhjccLivea of the Yale School of La*'. Annul., of ihe American Academy of Political and Soctai Saentcs, 167 (1033), lífi-7Í; DOTOthy SwaEne Thomas, 'Some AspecLtOf SoclO-1 íí£ílL Rtótaídi at\'ais\AmĽriiaaJotttnnl of Sociology, 37 (ľ>3ll. 213-21. The Evolution of a Mood rVf surprising to find ari ebullient Hutchins elainiiiig. in his final annual report to the faculty, that '[tjhe eonclusion of the year 1928-9 finds Ehe Yale School oí Law in the best condition in its lustoryV13 Inspirational appointments had been made, student nuiti b eis reduced, stuf í complement enlarged, new honours courses established, teaching and research revitalised; in short, Yale bad acquired the academic identity which Hutchins had sought for it—and the beflč époque of realism had still to come. Yet, even before Clark succeeded Hutchins as1 dean, even before realism al Yale had hit full swhrgT something wys amiss. Rather like the precocious football talent who conslantly wants the ball but is untie] tain of what to do with it once in possession, Hutchins's Yale was fast and furious but ultimately lacked vision. Every bit equal to the faculty's demand far innovalion was a basic absence of strategy, an inability, on Hutchins's part, to marshal its formidable talent. In i^nsidering Hutchins'career at the law sell mil one can alräiosi !iear him ydl, 'Do Something!' An.E his srylii rcflecEs (hut com mand The pact w;is frenetic fis lie constantly pushed, jostled, and piobed betli law in general unci legal edumtion in particular foe vjnys to make them better, nir>re sensible, more reputably ;i subjeci [or academic inquiry - - ^ HTIhe slylc put a premium on startriiü and Hide on following through, on creating, opportunities but not on working wilh the Opj?iJrturii|ie$ crealttl, on coming up with ideas but not on working them though.1" This style was otie which 'many of the Realists shared'."5 While they appeared LO break" decisively from Ihe Tiingdellian past, most realists had, in (act, little notion of what they were looking for hi Ehe law schools of the future. There was simply a widespread assumption lhat the social sciences would provide all the necessary answers r As early as 1931, Morris Cohen- -having previously weleomed Pound's interdisciplinary initiatives in attempting to undermine the dominanci; of mechanical jurisprudence""— warned thüt 'the gravest peril perhaps is that in reacting violently against our former isolation of law we shall neglect the results of centuries of legal scholarship and slavishly imitate other social sciences ol borrow from them methods and results that are not suitable to our subject. Let us not forget that some of the social sciences are very young, and nre as yet in large part only vocabularies of generous aspiration/117 Tl t^ a warning which, by and large, fell on deaf ears. '" RüberrM-ITutchins. Th^rTs RĽpL.rl toíht Faculty, \ille Law School. 1028- [<&<)', 117, quoted in Kalttun, Tliriir tl. \ 115, AhliTnorc, nir*ra n, 1Ü7, 35 m --..........- ScZilcucf, 'F/růi[i [hľ Vjile Ľipcricncc', .\npia n. 3 iJfiQ-iJo '"• Mcinis R Cohen. 'jHmpTudŕilĽB a* n Pluloiuphicfll Discipline', Jvurnnt of Philontflhy Psyclmtogy and Scientific Mnhotk, 10 (l^l j], 22S-Í2 'i'^o^y. ŕifliT^í^r C"HCn' £JuillCť: Knlll|íí a"d ,hc ^'»« of L-..V', t-oistmhia I. ffrv íl C.ayj-1 >, ^52-hl ai ôň4 5. 90 The EvotuSsim of a Mood The 'scientific' goals of the L;mgdc!Eian law school had at 1ca.\l been fairly obvious. What were íHľ 'scientific' goals of the post-Langdellian. law school to be? The appeal to the methods of (he social sciences suggested that the realists, if no one else, had a good idea of what they weie looking for. Hut once the general spirit of the 1920s and 1430s had dwindled, various of those who had been in the midst of the ferment acknowledged that theii initiatives had tended to lack direction."3 By and large, the so-called realists—whether they feigned or truly believed otherwise—had dung to the precipice of legal formalism, preferring, for all their admirable critical sensibilities, to remain looted in the past rather than take a decisive leap towanis the future. Thus it is that the revolt against iormalism which supposedly culminated with the coming of legal realism never quite occurred. The turn to the social sciences promised far more than ever was delivered, Huteiiins was perhaps, the first Eo concede as much. Soon after leaving Yale, he beatme, as one commentator has put itT 'an apostate realist',,]il Though, by 1934, realism at Yale was at its peak, Hutehins, now president of the University of Chicago, was conceiving of the social scientific approach to hiw as a phenomenon of the past; Tn attempting to decide which rule worked bellet we had to assume a social urdcr and the aims thereof, and then try to determine which rule did mure Lo achieve the aims we favoured. What made this difficult wuj. that we didn't know much about the sociat order.. . Suddenly we discovered IhiU tliei e were people who knew all these things, people who could lell us how the law worked and why. They were the social scientists. We had every reason to resort (o tliein. The courts were social agencies; ihcii conclusions musl be conditioned by society. The social scientists could help ui lo preiiict what the courts would do. Tliepsycholegiilb would help u& understand the behaviou ĺ of judges r , , Hand in hand with these other scientists we couJd become scientific. Alas, the quest fur an interdisciplinary legal science proved iutile. So far as the study of law was concerned, the insights to be gained from "" See e.&r William O. Douglas, Go Ea.\i, Young Man: The Early Yean (New York: Random House, 197.1), 170; Kai! N, llcwellyn. 'On What Makes Legal Research Worthwhile?', JaL Leg. Ediic-i H (I956). Ö99-J21 dtíOÍÍ-3. [l9 Edward A. Purcell, Jr., The C'lSU of Democratic 'I henry: Scientific Naturalism Urui the Froŕŕ«ir fl/V(ľhre (Lexington: TFniverslty Press uf Kentucky, 1973), 152, (hough cf- Juhnson, supra n. I(J1, Uft- ('IIulclllllS loot many of (lie rfflLitfi" ideas with him in Ihe University a[ Chicagu, where he was lTLhlTTimeutat in inaT]jjurdl!]ij5 a four-yc^r curriculum in the Law School thai included COU1SC5 in psychology, English coiuliluliOiiaE history, economic theory, and ethics.') 120 RuIjcfIM. HuEcIilps,'ThcAiilohlog^pjiy r.ÍdnĽX-Law&tu[!cnť, (J. Chicaga L Rvv., t 11934), 511-8 at-■ill- The Evolution of a Mood 91 collaboration between lawyers and social scientists were, lor Hutchins, negligible: Imagine our confusion . . . when we discovered that fiom their discipline!» ai such the social scientists added I i itl e or 11 odd ri£ . . .The fact was thai Though Ehe social scientists seemed to have a great ileal or intornialíoti, we could nel ice and ihcy could not lell us how to use it. IE did not seem lo show us wh;ii (|]Ľ euurls would do n r whether what ihey had done was right- - - , We did not know what facts to look for, or why we wauled llieni, or wliat to tlo with (hem flEEer we got [hem. We were simply alter iaus. These fads did not help us lo undersland the law, ihe social order, or (lie relation between Use twurm Given Hutchins's account, it may seem unsurprising that fact-research at ihe Yale Law School began to wane almost as soon as it had become established ri:?? Yet, in one sense, his account is slightly misleading, insofar as concern at Yale during tfic early 1430s with the empirical study of law did not disappear altogether. At the time that Hutchins was. writing of the passing of the social scientific approach at Yale, Undcrhill Moore— probably the most cümmitied legal empiricist American has ever seen—had only just embarked on his protracted study of driving offences in the light of New Havens traffic and parking ordinances.121 While Moore's work has attracted a good deal of knee-jerk ridicule,'34 including from Hutchins himself,125 it represents a unique if rather solitary testament to the peisistence at Yale duiing the 1930s of a quantitative social science approach to the study ol law. initialed af the end of 1933, Moure's project lasted until J937, and would no doubt have continued for longer had funding not dried up.l3fl l:l Ibid. 'iYl— 13" andci. rtlii* Curric, supra n. 93, 75-76; Arthur Nußbaum,'rad Kcícarch in Law', Columbia L. Rev.,4D(lMt>), 1*9-219 at ľJ9, Lŕi See Kíjhnjii, ±upm h. 3,35. ('EmpiíicisiM was disappearing Erotis tlielaw by 1932'); also ľeter Tľ. Schuck, 'Why Duri't I_ílw Piutesídis Do More Empirical Research?', Jul Leg. educ-, 39 (!'*&'/), ŤZ3-36 at 329. ('[I ]lic "golden age" nl empiricism in |flrt never rcjilJy dawned --eveiioiiMorningslde Heights or in Baltimore or New Haven during die heydew [sic] nf ihe rcuJi1.!^.') Fur all thii, Lhc empiricist .hliand ué le^al realism wa.1. not uninflucnliaI ai regards the subsequent development nf American legal scholarship, icy Arthur NUESbilunf, 'Some Aspects oť American "Lcfial Realism" ', Jni. Leg. tättc, 12(1959), 182-92 3(135-9. *'■' ľúi j deldilüd dĽuiucil, les SelitefieL, Tlie Singular Case ůf TJuJerlii]! Mours' supra it 3, 2f,4--3(&. 13J Fora critique of Ihe criticisms lhal have been Levelled ai Mocne, see Sclile^el jjirrm n 3, 292-3. 125 li is most likely that Huichins had Moore jn mind when he referred nllspaiariiifiiy iothe defeneration ůf qujiiiltaľiwe social science at Yale La* School Into an eiemse in 'i-uunling liíLcphunc piilc>'. Sec A'ihm.iire, sitpia n. 3(17, 154. '-r' See John P. Dawson, 'Irgfll Healism anri legal Scholarship'h J^J. Leg. E>i\ic.r 3j (19S3), 406-11 ^1 407. The main fruil of Mouie'a labour was a rtLdi&Lve jrlldc, written in enllib'iriJitiin 'vitK Ch^ric^ Gitlahan, a researcher j;i iKc Institute p] Human LícJaľioiis: see UmíeiliiLI Muoie and Cliailes Callahan, 'Law and Learning Tlieosy: A Smdy íei Lc^al 92 The Evolution of a Mood In another sense, Ilutchins^ observations arc rather more telling, in that they point to an obvious yet highly significant question: namely what, precisely, were social scientific studies of law supposed to achieve? What, of value, could social scientists give lo lawyers thai lawyers diii not have already'.' By resorting to the social sciences, so-called realists were attempting to engage in much more than a reaction against legal formalism. They were attempting also to carve out a future, a life after Langdcllianism, for the modern American law school. Paradoxically, realism both failed and succeeded in this task. It failed in that, as Hutchins detects, the realists were by and large content to espouse, in the abstract, the virtues of the social sciences rather than demonstrate specifically how those virtues might have a special significance and validity for the study of law. But it succeeded in that the realists' affair with the social sciences set the agenda for American jurisprudence of the future. Even the jurisprudential tendencies which were to emerge as reactions against realism would not be shy of the social sciences. Realism made the interdisciplinary study of law" respectable, even among its opponents. A reactionary few have regarded this as the most pernicious legacy of legal realism. With the advent of realism, so the argument goes, American legal culture lost its innocence; law could never again be conceived as a purely autonomous body ol principles and doctrines.137 More common, though, is the failure of post-realist legal academics to recognize just how fundamental a transformation the mood of realism brought to American jurisprudence. In his survey of modem legal philosophies, for example, Richard Posncr announces from the outset his intention to 'pass over the realists' for the reason that lie has 'difficulty in understanding what is original in [legal realism]'.lM The originality of legal realism was that it set (he scene for the emergence of jurisprudential sub-disciplines of the law and' variety.m Realism marked the marriage of social science and law. Control', Yale L.J., 53 (1943). 1-136. For an appreciative jsessmcnr oJ Moore's jurí'vpí-udeiice, CI. Simon N. Vcrduil-Joncs ami R Douglas Ccmsincau. "The Voice Crying m [lit Wilderness: Uikíleitiill Mni.re -a-, a Pioneer in the E^LabLislliLient nf an inletdiscipllnary Junspmdcpcc', I'll. Jnl Law avi7S),'l^-t0t1 at [005— 11; l Consequences: ^n TEiquny into Contemporary Sociological Rehearth', int. Jnl. Sociology of Lay, ŕľ(!9fi9). 41-1.1 This ii not to claim, however:, that, realism vrú", lespannihle [or Hie iise of law null economics- On tins matter, ice the introduction to eh S. The Evolution of a Mood 93 Yel k is Hnlchins's contention, in raising the question of what 'social science' meant for the realists, that this marriage wa.s basically otic nf convenience. The point is of fundamental importance. The rather hesitant and ingenuous manner in which most léga! realists brought the social sciences into the legal arena established a crucial precedent for future generations of legal scholars. Not only did so-called realists never properly come to grips with the social sciences buLr more importantly, post-realist sficial science-oriented legal scholarship generally took its cue from their promotion oF a 'newh, post-Laugdellian scientific ethos. After reaiism, American academic lawyers more or less stopped asking questions abonl what it meant to use the social sciences in the study of law. Such questions, it was assumed, had been raised by the legal realists; and while the realists them.selves might not have been particularly adept social scientists, they had demonstrated, in principle, that interdisciplinary legal study was a virtue heyond doubt. Thus it was that realism, ironically, brought to American legal Scholarship a peculiar element of complacency. It is, indeed, doubly ironic that, in the aftermath of 1930s Yale, among the minority of voices dissenting from the view that a social scientific approach to law is an enlightened approach to law -were certain of the later, second-generation realists themselves.1 3i> One of the fundamental failures of modem American jurisprudence has been the general unwillingness of its proponents to consider—except in llie most rudimentary of terms—the question ol what, for the legal realists, 'social science' actually meant. The question is not straightforwardly an institutional one—a question of who was doing what at Columbia, Johns Hopkins, Yale and elsewhere in the 1920s and f 930s—but a question concerning, first of all. how social science was coupled with the spirit of realism and, secondly, what social science meant generally for early IwenlicEh-centmy American social scientists. 5O0IAÍ SCľľiNCĽ AND ItEAUSM 'Reaiism' is an established piece oF twentieth century Western intellectual currency. The term is lar more prevalent in philosophy, ,irt, literature politics and history than ever it has been in law; and indeed, in those fields, it lias come to denote ideas and beliefs which at times rather contrast with the notion of'realism' in jurisprudence, liven in furisprirdence, 'realism' is not an exclusively American preserve;131 and in philosophy» the term has "" See e.£. Fred Rodel I, ''.egal ftcaJlSIS, Leu"] Fund ernenn li;[s, ľ awyer ScInuiK, rind Policy Stjenr-e—Or Hnw Not to Teadi Law', Vtmderhilt I.. Rev., 1 (1947), 5-7. '-'' 1-nr an illustration ofÜim point, see Karl Dlirarinna, Law «■. Fact find orl n. . London Stevens A Sliní, lOVl}, 1GS-Ö5; and also, fjtull another perspective. Gallon Gavct 'InJividu^lism Jind ItcaliS]]]', Yat/r L.J , 29 (1920), $>%-$&, (A^-53. 94 The Hvolation of . 1,11 See generally Raymond -1- Seidel m an. Disenchanted Realists: Political $cser\Lz end the American Crisis, I.8&4-19S4 {A!twinyT NY: Slate University of Nca Y.rrk Tress, \')Ü5). >y' lioscrQ Salomon, 'Rediism as DímillC titane^. Twain, tíowells, a n it James', A mpricun Quarterly, lů (1964}, 531-1't mí 533. *■ The Evolution of o Mood 95 or at ieast discredited. New conditions require new inslitutions and we turn away from tradition and prescription to reexamine the data from which we learn what principles of the social order arc Irue, that is arc conformed to human nature and lo the conditions of human society.,E3* In the social sciences, 'realism emerged as a way or enping with the new industrial world',1*1 Indeed, by the turn of the nineteenth century and the onset of the cr;i of progressesm, the social-scientific idea of realism—the search for 'facts' to depict 'contemporary reality'—had become an established method of producing authoritative knowledge about modem industrial America. 'The new concentrations of economic power, the teeming, polyglot cities, and the expansion of uiban, state, and federal governance created new worlds thai required detailed knowledge. The great preponderance of social scientists' publications during these years were empirical studies of the concrete operation of business, government, and social life.'1'"' Typical of the social-scientific evolution towards realist empiricism was the development of late nineteenth and early twentieth-century political science. By the beginning of this century, American political scientists were distinguishing between formalist and realist styles of social inquiry. A study of 'political conditions as they now exist in the United States', wrote Frank Goodnow in 19UU, reveals 'that the formal govern men tal. system as set forth in the law is not always the same as the actual system'.1'" Three years earlier, in his study of municipal problems, the same author had asserted that lo understand \vhal Ehe city really is.' it is necessary 'to treat the city rather as part of the governmental system than as an isolated phenomenon'.|4?" Goodnow's preference for 'realist* political inquiry is typical of a more general endeavour by his eon temporaries :to get beneath the traditional structure of constitutional principle and examine how parly polities, city government, and administration actually functioned in American political life',1'11 It is precisely this desire for realism which made its way into the law schools; audit was the general idea of social science that was seen Ejy most '-'* William Gralidm Sumner, The Challenf>ir of Fc/Us ami Other E&Says (al. A. C. Keller, New Hivcn Yale Univcrnity Prci.^, 3914), ^4—5; aid, im Sumner's sense uf ihc hrealr with the past add the Civil War, sec further Robert í_ľ- Bannister, Jr., 'William i& dovcteíl (o finština, defending, or attacking elaborate structures of autonomous thon^lit. - - There has ťeensuch imomplelfc absence of effort methodically to develop die empirical side of law and Such an over-elaboration of its rational side that scholaishlp in law tend;» more and more to neglect how courts actually decide cases and more and more 10- consider what they say about why thev decide a« they do, which, after all, is slating. Hie saine thing in another way,'"; By embracing the inductive paradigm of the modern social sciences, Oliphant argues, lawyers will discover the futility of assuming law lo be 'a .system of fundamental and changeless "principles" existing apart from cases decided in the past.'Lift and will learn instead to treat 'the reality' of law as 'the actual decisions ol cases by courts\,,i7The argument is, in one sense, rather banal, illustrative as it is ol" the cnmmoupla.ee realist faith in the indiscriminate application of social scientific methods, to the study of law. In another sense, however, the argument is instructive, for i( suggests how the 'realist' element of legal realism rested precisely in the appeal to the social sciences. By looking to the social sciences, particularly to those of an empirical bent, leg;il realists saw a means of developing on the insights of Pound and—more particularly - Holmes, of prioritizing iaw in action over law in books, legal experience over legal logic. The social sciences appeared to provide a method for telling it—namely, law'—as it is; for demonstrating how 'the concepts which the courts are using eiin he broken down and translated into the varying factual combinations which are found';145 for getting almost 'as near to a case as the judge who decides it',1 iy The realist re-action against legal formalism was not straightforwanIly a reaction against the idea of legal certainty, hut rather a reaction against the particular certainties which formalism promoted, Legal realism 114 Sec David Mr lYubck* "Lack l.i the Future: The 5hoilh Happy Life of the i.-iw ann Society Movement', University of WiwvHivin l^aw School tnst'Uile for Legal SiudifS Working Paper*, fieřies 4, 1990, 23-^ Herman Olinhant ami Abram IlcwiLL, (Introduction1, hi Jacques Riicff, from the ľhyzictr! to the Social Sciences: Int'orlitrtion to a Study ofEconomic and Ethical Theory (Eng. tx H Green, Ciltimore: The Jůllilí Hopkins PttSS, VŽZt), ix-xvxii al xxvi-xxvüi Iíewilt, J former '[[[[lení ill tin: Columbia Law School, was Ol[phailtrS research as^ilam :it Juhn1, HopKms, ti* lliiil xvlhi L'li Ibid. xxvi I?:| William O. Duuglui. oiiicL Cäisol M. Shrinks, 'lrmilsitioii trůni Liability T^růuel) Subsidiaiv Corporation*', Yale L.J . 39 (1929). 193-210 at 21ft. "1Ľ Ohphani. supra n. 7?.. lull. The Evolution of a Mood 97 sought a qualitatively different typu of certainty—certainty, that is, in the form of a purported juridical authenticity; and lliis it did by looking to the social sciences. For most legal realists, social science was realism. Law and Economics The early intersections between Jaw and economics, provide a clear illustration of this point. Late nineteenth-century economic developments in the United Slates supported the move towards social-scientific realism. Though economic hardship was prevalent during the last three decades of llic nineteenth century, Organized industrial action generally nibbed against the grain of largely conservative public opinion and led to concerted anti-labour campaigns,1^ The ideological conflict between pro-and anti-labour supporters was reflected in an academic context primarily by late ninetcenth-centuiy developments in economics. Inspired principally by the growth of state-oriented h historical economics in Germany, an emerging group of American economists—including the likes of John Bates Clark, Henry Carter Adams, Richard T, Ely and E.R..A. Selrgman—challenged the classical conception of the American political economy by questioning the 'scientilic' status which classical economists accredited td [he idea of free exchange.1^1 The lundamentaľ failing of laissez-faire, according to the new generation of economists, rested in its inability to provide a credible remedy for the problems of unemployment and working-class poverty. However, this did not amount t£> an outright rejection of the classical economic model. The brand of economic in (erven tionvsm which this new generation of economists promoted was decidedly restrained. 'Adams, Ely, and particularly Clark continued to value the individual independence and moral strength thai competitive exertion in the capitalist economy could create. Wherever genuine competition could he made to work, they hoped to retain it. Bv the same loken, state action would be used only where necessary: to raise tlie plane '■" sire generally DbihIlI Montgomery, Beyond Rqaalicy; Labor and the Radical Republican1*. I8ú2-t$72 (New Yoik: Knopf, 1967); J, H. M. Laslell, Lubor aid the Left: A Stndy vf Socialiít and Radical Influence* in tlw American Labor Movement, !HH1-?U24 (Ne* Yosk: Ľasic Books, l^O), Leun l7Lnk. Workingnien's Democracy The tf.jrgiJJr of Lubor and American Fotiiid (UEiiana: University of Illinois Pre*', IÍMJt). - L1L Kor diü.-u'.smri in general, see Mary FnmcE, Advocacy ami Objcctivny; A Crisis m the Prúfes<.ianali?aUOrt of A merit an Social Science, 1865-19Q5 (Leni<- Thought Since IS'/O (New York: ťrecí Preis, L9Ü2), IÍ0-253 ,55 Wesley Clair Mitchell, 'Sucwl Process and Social SuciJtt', unpublished manuscript, 6 September 1035. in Wesley Cfcir Miu;iiell Papers, Rare Book and MatuiEcript Divinou, Hüllet Libiary, Columbia University, ,5>l See cg,. 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"I ■lOJHlOl ^iJiSnjgxS JO Síl?^ SHOL^qO SS3[ JJ[[)0 ÍJJK íij;ii|l mil - - -.iBrtiod yiqiiSLsaiii íq ps^pisq sjnpjo zuoiíiidoo ^iiiFuiud ^m:^ui jojpo^, :u(ju^uJOü^qd ^luiouno^ «nyipiíuc UE KR ICUJUOJ |i:i30S JO S3A|30[IO3 JJJUJD SOímET/J UI|Or 'l«^t lSj[EU(UiniIlSUl jÍjEjduiítx^ viqi ^d^qjad '&l jiiq.w u[ "^ojutoo jepos, aieijipEj oj s^iuiouíx>;> jo usu aqi qiiiVi 'íjiEJouDiä aji>ui 'iiiq uüijusA^ajUT Jiuroitooa jo uoiiou ^qi. qiLA-L 'XqiiJijioads ui7ip [í; p os piaj oj Xcaí aq) peaí, 01 Xiuaqi nLLuoiioaa jo Xiioeduotq ?qi ipiAi luaiiEdiuj n3^|pEJd ^ís&Epoau Xq patqiíjuo? aq ]ou ppoo pqj. iu^i3?p; [Rjaqq a.-lSIT puif [[[^Ľaj p aao[j.I3ao uü &ka\ uoL)iqiUR jsiiuuoiiniiiíiui sqi pa[Oiij jci|AA, luí^iuO[1u^aj;1)ui p^yqiuib pOOffl iJ JO UOlittjOúg zijx nor 1ÜZ The Evolution of a Mood legal system íis regulatory üpparatus; so too is it unsurprising (hut, as progressive lawyers became diawn ever more to the methods of tht social sciences, institutional]st economics should have proved a peculiarly attractive proposition. One of Hutchins's earliest initiatives at the Yale Law School was 10 secure the appointment of Walton Hale Hamilton, an insliLulioiialist economist without any foimal legal training. Vet it was at Columbia, where John Maurice Clark held a chair in economics, that msLitutionalisTU made its most profound impact on legal thinking. According to Clark, the fundamental failure of classical economics rests in its misapprehension oi inlerveutionism us a purely public-regulatory affair. Analysis of the concept oi social control, he insists, reveals that 'external1 regulation of economic activities, is. essentially :i private rather than a puhlic phenomenon. '[Wjhen the slate acts , . . it is always some individual official who is really acting . . . [Fjor all practical purposes, he is the statt/1*7 The same point is müde with equal force by Clark's institutional]st c/mfľere, John Commons; The sta U: is what its officials do . . . The ilate is not 'thu people,' nor'Ukj public,'it is the working mlcsof the ilisaetionary officials of the pjst and present *ht> have had and now have tbc legal pou.eL to put IheirwiU into effect within the limits setby other officials, past and present, and through die instmraĽntality of other officials or employees, present and Ititine.,b" As a source oT social conlrgl, the state is inevitably instrumental in the shaping of economic liberties. 'An economic liberty1. Commons suggests, 'exists onlv through official behaviour designed to permit and authorize it,'lfů However, the limits, as opposed to the existence, of any particular economic liberty is not exclusively a matter for the state. Indeed, a^eordhig to Clark, so far as the social control of business is concerned, the stale, even under a system oi iiuervenfionism, plays nuly a minimal governmental role, since libeity is primarily at the mercy oľ internal market forces: Tlie substance of liberty . . . has an economic basis. It depends,, in the fin! m atmet, on knowledge, especially (in the economic field) knowledge oi the market and knowledge oľ how to produce something with a marketable value und how to dispose cif U at u lair market price, A person who drjep not have n job or any other source- or income, and who docs not know where to get one arid how to go about canvassing the market effectively, does not poiicHt tlie substance of libtny. That per&DTiiSin, a portion to be exploited Hiid to he forced to make contracts which are esientially made under duress.110 "" Clark, iiíjvťí a. lfi2, v. ,ia John li- Commons, Lrgal Foundations of Capitalism [New York Maoni 11 hti , 1924), 122. 1^9- Commons was a pLOfcssor i>£ ľľuiIOUiícm at the IJnivcmty of WLhtunSin. •^ Unci. 137. l™ Clark, supra n. Iffit. llO The Evolution of a Mood 1(13 Thus it is thai, the possession of a liberty is by no means tantamount to the possession of a right. 'Has a labourer a right to work? He clearly has a liberty to work - . . but so long us no one has ;i duty to furnish him a job, getting a chance to work is not a right in the strict sense.>l?r Equally. '[t]he freedom to make a million dollars is not worth a cent to tme who is out of work. Nor is the freedom to sLirve, or to work for wages less than the minimum of subsistence. One that any rational being can prize—whatever learned courts may .say to the contrary'.1'2 Hence the institutions lis t objection to the classical idea of free exchange. The liberty which the classical economists extolled was an insubstantial, unprotected liberty: freedom as mere absence o( restraint. Real I i berly—liberty backed by rights—could only be achieved through the simultaneous promotion and facilitation of economic equality: If all individua Is were exactly equal in physical, economic and persuasive powers, then iJierc would bo no reasonable purpose in placing any limits on their liberties, since no one con M harm or mislead auot"Ľr anyhow. ISut, since tht real fact h one nf abounding inequalities, limits arc placed somewhat on the liberties of the more powerful under jhc name ol Julies, sucli (hat a more reasonable degree ol equality mav be maintained. These d[i John Maurice Clark in the ptefaee lo Social Control of Business lor having, at the author's invitation, read and commented on iin earlier dra f L of the. book.17i Clark also expressed his approval of Llewellyn's own ideas on the relationship between law and economics,l7Éi which ideas were developed by Llewellyn in a paper delivered to the Am&ricim Economic Association in December 1924. Adopting die terminology then prevalent among economists and other social scientist Llewellyn suggests in his paper lhat tbc institutional ist preoccupation with social eontrol is mirrored in jurisprudence by the Pouiidian concept of social engineering.177 '[T]he legal feature of this age1, he argues, is 'the emergence of diverse and specialized groups with a need for specialized control.'ITa As agencies of control, '[l]egal institutions provide a general atmosphere of security from peisonal aggression without which economic life could hardly be expected [o unfold-'179 Accordingly, as important as the question of what economic theory may offer for die understanding of law is the question, Hwbat may law have to contribute to economic theory?'1^ lly regulating competition, distribution and production, for example, 'legal institutions fix and guarantee the presuppositions on which ihe economic order rests',mx (If till the institutionalist-inspired realists, Llewellyn was unique in that he was concerned more with the impact of law on economics than with economics on law. Lfowellyn did, nevertheless, acknowledge thai institutional ism highlights some novel legal insights, Having recognized, as early as 1924, the'striking contribution of Professor Commons.' to the economic analysis of law,lS! "' Sec Clark, -uipm ^ Víl, xv 17t fbul. 137 Sri. 1. LTr Kurl N. Llewellyn, 'The Etfcct oi Legal InsiftuiLons Up«" Ecinnnmic*, Amfifim EamůrHK tfťv., 15 (1^25), fiftS-RJ atů&fj Mure ĽCHfrally.. HU the mnc-epl OĚ stieral 4X)[itrol in modem AillCľienn junspructcrurii ulij law and ecüil^niilci. see Robert C. EllLC^'iin, 'A CriCiíliic kí Economic and Sociolnßjt-iil Tlieoilí"1; ., 1 (liß&)_ 257-65 at 260-1. 112 I icwcllyn, SUp'a n. 177. GBO. l-nr .l siruilaLty appreciative iihHü^iicnt «i CúhI m onOi cunlribHilfen to liic tconomic an^ljíli ^f Isnv, see Jjcncrjill} liaymiind J. HeilniLin, 'Tlif CoritljlLOn Between the Science1; "i La,,' and l-'cmtHULcs', California S, ířtv , 20(1 y 33.) ■ W> 95. 'ľhc Evolution of a Mood 105 Llewellyn, throughout his writings of the 1920a, came to question with increasing vigour the formalist pictuie of law without a human clement. Just as Commons had asserted that the state is wh;it its officials do, Llewellyn, by 1929—though ultimately hi: would retract the statement— was telling his students at Columbia that '[wjhat [legal] officials do about disputes is . . . the lav/ itself.Lfii Perhaps more importantly, he also recognized tliat while the development of economics was in various ways parasitic on Ihe functioning of legal institutions, the regulatory threshold of those institutions could, in one vital sense, be illustrated through economic theory, since, from an institution a list perspective, it uiiby be queried whether any innc public regulation of economic activity m tlie public LTiteresl—whatever lhat may be—h net largely accidental. The way i>f growth seems to he along whatever balance results fron] the pull and proclrfärig nf this and Ihe olher private intcreiiJ33 This one short quotation ralhCF captures the institutional ist contribution to realist legal thought. To resist the public regulation of economic activities out of a respect for market freedom is to fail, unwittingly or otherwise, fo set how the market itself is an oppressive rather than a liberating force. This is precisely the argument which various Fcaliuts adopted in their attempts to discredit the tradition of laissez-faire in the courts. Llewellyn himself, writing in 193 L, drew attention to the subtle regulatory function of Ihe 'lop-sided' contract, that is, the contract where 'skill and power enter on one side oiily'.iai 'It i.sT, he insists, 'a form of contract which, in ihe measure ol the importance of Ihe particular deal in the other party's life, amounts to the exercise of unofficial government ol some by others, via private law.TÍĚŮ Kor all thai such bargains can sometimes -press to the point where contract may mean rather fierce control/ the courts have nonetheless 'been slow to see what was needed, or to find means to fill the need Beneath the surface of the opinions one feels a persistent doubt—one feels it even while interference proceeds—as to the wisdom of any interference with men's bargains.>lEi7 Essentially the same argument is offered by Morris Cohen. In their subscription to 'the classical economic optimism that there Lsa sort of pre-establis bed harmon y between the good of all and the pursuit . by each of his own sellish economic gain,' the American courts had come under Ihe spell of the'cult of freedom'.I5& Supreme Court decisions such as Loclťier v. rVeiv York'1*'* and Coppetge v. Kansas^ had the effect (yí 113 Llewellyn, uiprn n. 25, 3 .ind Jj>f T.íľwcMja\ FĽtraeii.m, sec ih-iri ix-xi; and T\.Lrtijlu, Supra n. 12, U<)-52. IW TlewcIlyn.Jľfťrt/Ei 177,672. I!" Kail N. Llewellyn, 'Wh^t Price fnriľraci?—An ľ'ŕsiy in Pc^prctive'r Yak L.J., JO (ľ)íf).7l"l.l-VI af 731. '"'' Jbid. "" ll>[d IM. IHh f.'ohCü. .-upni n. 172, n^S-'J ,K> Lochner v. New York (VM5) 19S U.S. J5, 1WI Coppugc v. Km-.it, (1015) 23fi U S t. j Oft The Evolution of a Mood legitimizing 'ihc fiction of the so-called labour contract as a free bargain', when not only is there actually Utile freedom to barj-ain on ihe part of ihe steel worker or miner wlio needs a job, but in some cases the medieval subject had as much power to bargain when he accepted the sovereignty of his lord.'1'" 'There is, in fact, no real b in-gaining between the modem large employer . . . and its individual employees. The working-man has no real power lo negotiate or confer with the corporation as to Lhe terms under which he will agree to work. íle either decides to work under the conditions and schedule of wages lixed by the employer or else he is out of a job.*1*2 Thus it is that legal realism, following in the path of the institutionalisf economists, came to challenge Legal formalism in the courts 193 For all that it had been cherished by the Supreme Court, the free market was not a natural phenomenon, guided by lhe invisible hand of natural selection; lather, it was a social construct, an ideology, Kconomic freedom—-lhe freedom to ehoose—conceals economic duress- coercion is an integral feature of the free market. The advent of realism maiked the demise—if only temporary—o( a pervasive legal-economic myrh: die myth, that is, of unimpeded voluntary action, of the free economic agent situated in a realm of pure choice and motivated by competitive Darwinisi instinct. By the late 1930s and liMQs, as the Supreme Court—beginning with West Coast Hotel ''■" Morris R, Cohen. -Property and Sovereignly'. Cornell L.Q . 13(1927), B-3U ill 12. 111 Cohen, -wprtt n. 172, 5ĎV; and *,ce also Cohen, supra n 1L7, 3Ď-J—fi; Fclii S. Collen, Tcan&ccndcTifHlN.iTi^eiLScainlilicť'iiníľti^n^ Ap^oach1, Columbia L. iíev., 35 (l9J5)rÍQ9-iJS ai SI 6-17. ™ Although my thesis licrc is tlirfí leeal idealists, in sn far us ilicy adopted ecaiiomie arguments, tended CO apply instilulioiialíst insights Hr docírllial problems. It should he rniled tlmí there v>ak «[m speeifie strain of relist lefiíl ^rily,ir—na[aely, tlie idutyjtEocS deed ne— which drew tir, economics in a rather Jilleieiit manner Leon Green, Dean of the Northwestern U nive rsily Schuülof Law from 192-9 [llrougľi to 'he mid-194, 30S*-97ai 35?2. and see also David W. Robertson, 'The Legal Philosophy ut Leon Green'. Texas L. Rev.r 5o" (1078), 393-437 at -122-4. Green was ™iL, in fact, [he finst American lawyer to attempt an economic interpretation «f the law of torts, in Ulis matter, lie had brcn foreshadowed fay tiä^ academic rival, Krincis Bolllen. Sec FtdnCiS Bohlen, The Basis of Affirmativ? Obligations m the Law of Tort (Philadelphia: Department of l-aw of tlie 1)nLversity Of Pennsylvania, 19(15). Sec alsU C-recil, supra n. 14.245-51; and ROSCOC found. The Economic Interpretation and the Law of Torts', Harvard !.. Rev., 53 (1040), 365-35. The Evolution of a Mood 1(17 Co. v. Puirísh™'—gradually outgrew [lie formalism of Lockner and Copptige, teali&l-inspíred doctrinal lawyers began to wonder bow any court could ever have taken seriously ihe late nineteenth-century liberty of contract model.lte By (he Jate 1970s and 19S0s, proponents of critical legal studies in the United Slates had adopted (he realist atlack on (he tradition of laissez-faire as part of their own jurisprudential agenda.19* Of all the realists who challenged the tradition of latisez-faire, none wa^ more inspirational lo future generations of Amcriean academie lawyers ihiin Robert Hale. Trained in both law and economics. Hale was appointed as a full-time professor at the Columbia 1 .aw School b ]"2S as part of Dean Smith's drive to replenish a sumewhat depleted faculty following (he resignations over (he deanship controversy. Through his training. Hale was able io recognize clearly (he manner in which laic nineteenth and early twenifeth-eenlury legal and economic idea;, were following parallel paths. Ucginning with Loclmer, the classic dissenting opinions ol Justice Holmes marked, for Hale, (lie demise of Spcncerian economic austerity in Ihe courts. He ci(ed as a 'lilerary masterpiece'|HrT Holmes's dissent in Tyson <£ Bro. v. Bullion, in which Ihe majority of the Supreme Court declared unconstitutional a New York statute limiting the resale price of theatre tickets to fifty eenls in excess of (he box oflicc price.lilS In that case. Holmes took (he view that 'the legislature may forbid or res(ricl any ™ Wnt Cija.Tf Hotet Co. v. ľani.h (1037) 300 U.S. 370, «vcrrolJllj» Adkuvi v Otiltiren'* Husptlal (15)23) 2-il U.S. S25. Compare also Hebe v. Shaw (1919) 24'A 11.5. 297 (cirly indication of tlie Supreme Com I tlioviilj; tfivay from iw^nCr); and sec, generally, Samuel Herman, 'Ľeon.imic HrcdLlectLOn and Ehe taw', Anténam Political SderiCť Rev., 31 (1937), 321^11 i( ü23—b; David P. Curric, ''Ihc (JoilsE[fuüun m the Supreme Court- The New Deal 1031-1W, £/. Chicago L. Rev., jl (1937). 5f}4-tt at5-11-53. 1,1 See Julm P. Dawson, 'EeonOniiü Durcih and ihe fair Exchange in French and German La..,ř, Tiilam L. Rev., 11 (1937), MS-7Í3 a.t 345- 'ÍZtjni^mic Duress—An Ľnsiiy in Pü^püdivc', MicltlRan L. Rev., 4^ (íEJ47)t 253-90 ehji. 1>&-T; John Dalielľ, 'Duress by Genomic Pre^urť, North Carolina L. Rev., 20 (Wl), 237-77, 341-Sii. Thepri^pímcnlofciliícal icijjlrtudieív.ho has cliacnpiOntil ihercahsi assault ún/ct/.ttíz-faire sno-;t vigoiOuSlj i^ Joseph W, Singer, 'Legúl Rcalinm Now', California L. Rr.v., 7[h {l9f!£), ■lo5-544htliuuj':htJii,;isnotto oveilook thcefforunf so-eaJled 'firůt-^cncraiíairerLtlcíl lfg&l Stlioldn, such a^ Kail Klaie, Duncan Kennedy and especially Morton Hoiwjta. Se= e.g. Karl Ľ Klrtre, 'Judicial Derjdic-dliřjlion of [he Wagner Actdnd shcullgliis of Mildern l,cga( Ctmsciousness, 1937-1Í41', Minnesota L. Rev., f.2 (Í978), 2Ů5-339 At 29G-3I0; Ducn.au Kennedy, 'The Role of Law m EĽOímmic Thought: Essays üh theFcikhismof Cuinmodhic-?', American University Ĺ Rev , 34 (l9f!5), 939-1001 al ttl-l; ,ind Moitún J. Horwjti, 'Tlie Hi-itap,1 of Ilie Pubric/Privatc UistlLiedOil', U. Pennsylvania L. Rev., 131) (19ÍS2), 1423-S at li?Jj; The Tran\fe>nnation of American Law f&lO-WW; The Crisis of isgfll Orlhod/izy {New Yiirk: O(forri University Press, I9W-). E69-246. NVir .should one overlon^ ihc fact that the realist analysis uf the concept of coeruun has been llltluenlial uuLsiitc eilľical le^al círcJcš See e.g. Summers, supm il. 19. 224-35. Robcrf \j, Haleh 'Tlie Constitution and Ihe Prit-e System; Some ReÉleciľons on Ntbbiti \ New York', Columbia !.. Rev., 34 (1934), 401-25 at í 15. "* Tyson & Uro. v. BantOn (1927) 273 U.S, 41S. 108 The evolution of u Mood business when it has a sufficient force of public opinion behind it.,,Btf Hale also lauded Holmes's recognition that, in an economic transaction, choice and duress are by no means mutually exclusive." More clearly than any other realist. Hale saw too thai Holmes'* ostensibly unti-Speiicerían remarks were but tentative allusions to a broader anti-classical economic tradition. By drawing on this tradition— the emerging tradition of institutional ism—it would be possible, T Tale believed, to put forward a detailed legal-economic critique ollaissez-faiie; a critique far more carefully and constructively worked out than anything to be gleaned from the random, often qualified, invariably contexiually specific remarks which peppered Holmes's Supreme Court opinions. Hale took it upon himself to formulate this critique, and his starting point was, perhaps incviLably, Thorstein Veblen. Published one year prior to the decision in Lochner, and very much a natural progression from his earlier work castigating the failure of late nineteenth-century economists to embrace the insights of evolutionary science, Vcblen's The Theory of Business Enterprise had become established as a classic prolo-institu-tionalisL critique of the notion of economic liberty. By the end of the nineteenth century,. Veblen argues in that book, the idea of natural economic liberty had 'taken the firmest hold on the legal nuiid\aui owing primarily to the judicial imperative that 'the principle of Ircc contract be left intact in so far as the circumstances of the case permit'.-112 TnhrDU£ls gradual change of the economic situation, this conventional principle of unmitigated and inalienable freedom of contract began to grow obsolete,' Veblen concludes, 'from about the time when it was fairly installed; obsolescent, of course, not in point of law, but in point of fact.'2111 This is, ineflecE, the argument which was adopted by Hale. Even though the principle of natural liberty 'may perhaps be derived by intuition from some highly respecliible source—the. Fourteenth Amendment, or the genius oJ our institutions, or Herbert Spencer . . it is incapable of ""' Ibid 44G. '"" ticc tl-nirm Pacific Railway \ Public Service Commäňon of Missouri (191SJ, 24ft U.S. GJ, 70 (Holm« J EltaenLLEig); a u d Vie ftna Lines. (1905) 1W* U-S-110, 130-1, (Holmt* J dissenting)- alio Robert 1- Hale, 'Force and the Sulc: A Comparison of -Poliiicar am' ■'Economic" Oompul bion', Columbia L It^.,^5 {1935), 149-201 at 150 si ses).;-\ Iti™híLíIU' tioriEiL Conditions and Oor^liluEiunal lügt"1.', Calumbťa L. titv-, 35 {153i), J21-J1] at 3-W ci sei). A dĽUíled study of Hale";, own brand of law unit economics is scheduled iu appear in 1095: Barbara H. Fried. Robert Hntp and VrugreSStve l-fgal Economics (Cambridge. WiiSí.-Harvdrd TJilivei<y Pres*, forLTiľOejIÍ !!&>. !IJI Thin-iLéÍEi Veblen, The Theory of Busineß iüHerpriic (New York: Mcninr, 1 íJíft; uri^ publ. 1904), 130. m Ibid. m -m [hi£[. The Evolution of u Mood 1(J9 application*,21" since 'the systems advocated by professed upholders oi laissez-faire are in reality permeated with coercive restrictions of individual freedom and with restriction^ moreover, out of conformity Willi any formula of "equal opportunity11 or of "preserving the equal rights of others". Some sort of coercive restriction is absolutely unavoidable, and cannot he made to conform to any Spencerian formula.'11^ By turning coercion into the nub of the economic apparatus. Hale inspired as much as he followed other institutional I tuts. He preceded both Commons and Clark in his insistence that, since 'economy* connotes regulation and management, the notion of a 'free economy' is an oxymoron.?Jlů Indeed, in this respect, he wsf very much an institutional ist sut generis. 'Eveiy price, like eveiy tax/ he insisted 'is í Et some measure regulatory and Lo some ex ten í interposes an economic impediment to the use of Lhc article for which the price is charged.'207 Coercion thus lies itt the heart of every bargain, since the extent of our 'freedom' as economic agents is relative to the level of our individual bargaining power, our ability to afford the requisite price. Greater bargaining power entails a capacity to require Lhose with comparably less bargaining power to accept one's economic terms; it entails also a comparably frrcnter capacity to reject or modify the contractual terms set by otheis. Very simply, the more bargaining power 1 have* the less susceptible I am to the economic coercion of others, and vice versa. That Hale recognized this was important enough. The free maiket ethos of Ehe lale nineteenth and early twentieth-century Supreme i'onrt hptd been exposed as a myth. Economic freedom win economic compulsion. More important yet, however, was Hale's transformation of tin's insight into a specific theory of regulation. The nie of economic wealth to facilitate both freedom and coercion, he arguedT demonstrates that government is ;t private as well as a public phenomenon. Formalism persisted in the American courls owing precisely to a general judicial inability or unwillingness to face this fact. In its interpreta lion of the due process clause of the Fourteenth Amendment, lor exiimpje, the Supreme Court of ihe l.ocimer era emphasized the constitutional impropriety of h Laic interference with agreements between private citizens. 'No State shall . . , deprive any person of life, liberty, or property, without due process of law' 2m Robert L. Hale, 'Rale Making and tin; Revision of [lis iT-OiierCy Concept', Columbia S.. Rev.,22 f]922), 2(W-lti at 1\2. , J"1-' Robert l.r HiilĽh 'Coercion and Distribution in 3 Supposedly Non-coejtive State', PoUucttl Science QutulaIy,3Ů (1923), 470-54 ul 470 '"■ Robert 1. Hale, '1 av. Making hy ÍJnoffícLnl Minorliic<. Columbia L ľíj'ľ., ?ľl (V)?Q), ■i-il-r> ;i[ n 55, "" Robert L Hale, 'Our Equivocal Cú]iSIiluliůiiiii Giuiatitiei', Columbia /.. Rev., 11 C1&39], 5Ü3-W nMfiň. 110 The Evolution of a Mood was Eh ken Lo mean, inier alia, that states» have no business attempting Lo regulate private economic relations. Such relations were a matter for the market, to be governed only by the contractual terms freely accepted by economic agent*. Public (state) government, in other words, has no light to interfeie with private economic freedom. For Hale, however, there is no such thing as economic freedom. The 'free market* is every bit as much a regulatory apparalus as is the state. Accordingly, the constitutional piotctlion of freedom of contract fiom state intervention is premissed on a fictional differentiation between public and private, on an assumption, that is, that the potential to regulate economic allairs is solely a characteristic ol" the public domain. A man's liberty is thought tu need no constitutional protection against private JTitfivjdnals, for the ordinary law protects liini against any violent intcrftrcnu: practised hy others. II others induce him to refrain from exercising any of his ĽOristiíntional lißlits, hy refusing otherwise lo For Hale, legal formalism in the late nineteenth and early twentieth-cen tury American courts consisted of more than just the sanciiliĽatiou of laissez-faire; it was defined also by a separation of the public and the private which was as strict as it was artificial. Only the state could unreasonably interfere with private economic transactions. The possibility of the entrepreneurial ahuse of private government—of monopoly, unfair competition, economic duress and the like—was overlooked. Yet, ironically, only public government—in JIM Ifrwt, 5tvl "" Robert }f.c. Hale Paper:*, Raie Book and Manuscript. Division, Butter Llbl&iy CulimiLiia Uiiiveiiiiy, folder Z-t>. Lrcm 1, p. 17- and foliler Et), item 3, p. 7. The Evolution of a Mood 111 the form of state legislation or constitutional protection—could ever realistically keep such abuse in check. The individual liberty of the governed often demands some sort of protection against abuses, of private governing power, analogous to the safeguards which our constitutional system furnishes against [he abuse of official government. Such safeguards only the official government itself can furnish.'210 Through their reluctance Eo acknowledge that economic coercion has its private as well as its public dimension, the late nineteenth and early twentieth-century American courts failed to appreciate that the major obstacle preventing a flourishing free market economy was not the threat of public control over private economic affairs, but the nature of the market itself. In recent times, the task of collapsing the public/private distinction has been revived by certain proponents of critical legal studies.21 c Hale, in his writings on the nature of economic coercion, was the first American aeademic lawyer to biing this task to Light. The modern critique of the public/private dichotomy can, accordingly, be said to have its origins in the early twentieth-century intermeshing of institutional ist economics and realist juristic sensibilities. Tf only inadvertently and indireelľy, realism, in its appeal to institutionalism, set the scene for a good deal of modern American jurisprudential debate. Realism, History and the Constitution Whereas Hale's theory of economic coercion was of an unmistakably institutional ist bent, other realist affinities with inslitutionalism—while no-less significant so far as the intellectual history of realism i,s concerned-— weie of a distinctly broader variety. Some realists, while not especialfy indebted to ins lita tí o nal ist insights, seemed to have a passion for imitalinii Veblcnian polemic. In his famous tirade against the leisure class, first published in 1899, Veblen claimed that the progression from feudalism to modernity was distinguished by subtle changes in the nature ol control and consumption on the part of the dominant class. Fraud, first of all, had supplanted brute force as the primary method ol dominance and exploitation. The modem entrepreneurial elite, in its successful utilization of fraudulent techniques, was aided and abetted by the profession of lawyers. 'The lawyer is exclusively occupied with the details of predatory fraud, either in achieving or checkmating chicanery, and success in the 1W Hate Papers, ibid, iuldcr SI, itcin >f, p. 1U. ilL Sec Kenneth M Cascbecr, 'Towaid a Critical Jurispriiifcncc—A First Slep liy Way ot ttiĽ Public-Private EJistinclion nt Coiiutiluliun.il Íjjw\ U- Miami L. Rky.,57 (1 fl&3), 379^133; Alan freeman and Elizabeth Mensch, '"ľhc Piibllc-Piivate Djitmction in American Lav. jud UIe\ Buffah L. Rev., Zt{VÍSl), 231-51; and nJ". al.h.i the 'Symposium Oil IlicPublic/Pmatc Distinction', U. Pennsylvania L. Rev., fäll (IVČSZ), V2£9-(W. 112 The Evolution of a Mood profession js therefore accepted as marking a large endowment of that barbarian astuteness which has alivays commanded men's cespect and fear/21" Secondly, -whereas the feudal aristocrat had been happy to cultivate to a high art a conspicuous personal disdain for work and utility, the modern captain of industry, being concerned above all with economic productivity, has come to conceive of leisure in a radier more subtle fashion, namely, as the celebration of such productivity, as consumption. The modern aristoeracy, for Veblen, is a leisure class, a class ol conspicuous consumers, held under the sway of maur, advertising. This style of broad-brush polemic is mirrored in frit -writings of '-radical* realists such as Fred Rodell and Thurman Arnold. The opening lines of Rodell's .luccLi de scan/lute in denunciation of the Itgal profession aie a perfect illustration of Veblenian bombast: In tribal tbncsh (lieie were the medicine men. In the Middle Aije*;, there were the priests. Today (here are the lawyers For every age, a group or bright boyi, learned m their trades and jealous of Iheir learning, who blend tixhniĽiil competence with plain and fancy hocu^-pocm 10 make themselves masters of (heir fellow men. Por every age-, it pseudo-intcllťtlnal autocracy, guarding the tricks of its tradť from ihc uninitiated, and running, after its own patlen), the civilization of itt day/11 Rodelľs modern lawyer, like Vcbleiťs modem entrepreneur* is the successor to an earlier dominant class, 1-aw is. a fraud, a scam, 'a high-class rackety5,1 its practice is bul the manipulation of the laity by an elite. Vc;blen1 s work provided Rodell ;ind other realists, with an attractive, il flagranlly overgenerali/Ld historical perspective. By reporting to Veblenian rbetoiic, the ills of modern Nonli America, or certainly of modern North American law, could conveniently be diagnosed a& the outeome of the pernicious process of evolution from medieval brute force to modern predatory fraud Thus it was lhal llie tradition of institutions lis m in the American social sciences gave some legal realists a lasle not so much for economic analysis as for historical generalization about the law. It is perhaps unsurprising thai those realists who lucked to instil utia rial-i\m should have found history rather than economies. Most institut!onalist writings were highly technical and focused on specific problems such as overhead costs and business cycles—the sorts of problems which would have made little sense to, or held litllc appeal for, realists -without any economic training. Veblen's romantic, conspiratorial grands réciis, in :|7 Thurilei]) VeWcn. The Theory of the Seiiure Cia\s: A" Ftmuitnic Study of IntfituliOf/s (New York. Mentor, 1953; Ol i&, publ. 1fi9^. 156. For sin excellent, general discussion ní the Veblenian position. Mľc TlieodoL W. Arľnmu, Prisms (hnjj trans. S. und S. Weber, Cambridgů. Mass.: MIT E'jtk, 1W1J, 75-94. 'll Fred iiodcll. Woe Unto You. Lawyers!(New Yolk: ňcrlieLiiy.míWiorig pubL. 1931) J. 213 lind. tO. Thr Evolution of u Mood 113 contrast, were a& readable as good fiction—and in .some ways were best treated as such. However, there w;.s ;t tendency lor legal realise to treat Veblen ijiiite literally, primarily because they found in his work an 'indictment of classical economic theory' which could 'be applied word for word to classical jurisprudence1,215 hut also because they discovered there a polled history of modern America which rather confirmed their own intuitions atJOUt the legal world. It is not insignificant that historically-oriented legal scholarship was never particularly prevalent among so-called realists. A possible reason lor this is thai, in their various attempLs to use— or at least to toy wilh—the methods of the social sciences, tbese realists discovered—ready-formulated, as it were—various hypotheses including historical hypotheses, which amply supported their own arguments. Given lhat. by the late 1920s, the basic historical path which some realists might hiivc cared to Lrcad had already been covered by Vcblcn and other social scientists with institutionalist leanings, there seemed tittle point for any legal realist to retrace those steps again. This is not to assert, as Grant Gil more docs, that legal realism was totally ahisloricalJ?"' Realists such as Karl Llewellyn. Walton Hale Hamilton, Waller Nolles and Max Radin produced excellent historical studies in their own areas of specialization.217 fiueh studies, however, were the exception rather than the rule/18 The literature of legal rejEism is, for the most part, distinguished not only by a paucity of original historical scholarship, but also by a general lack of appreciation for history in its own right. "I"he conception nf history to be found in most realist literature conforms with what Laura Kaiman has termed ^prcsentisť history—the idea, that is, that the only worthwhile reason for studying the past is to cast light on the problems of the present.'"5 Fresentism was very much -a fit ^ Cuhcn, Slipra n. 192, J&2- and cf. elIíj Kulman, sitpra u. 3. 10 Zlů See ijilrliDre, \uprpT\. 64,103. ('Tn the In'" SťllOOls, until rnmc rime alter World Wir 11, ih c í t ndy of any íiclíl of lň\v from íj historical point O f vie* wa= almosr unheard if- Indeed, the Kcaljsts (with ihc exception u f Hzirl lli^elljri) ľ'Crc no innre inttresled in Ehe |H*Sl than Ihc Laiißdcllian ÉotinalisĽ lud hccn.'l 717 Mcc. c.j; Karl N. I Icwcllyn, 'On Warranty of Quality an.il Sucirty', Columbia L. Rev It» (1Ü36), 6l^)-Tí^, Colombia L. Rpv., 37 (1937), 341—4(1»; 'Across SjIch on Hoisebjck'. Harvard I.. Rev.. 52 C1939), 72Í-1&- 'The First Struggle to UtlhoiSu Sales'. Harvard L Rev , 52 C1939), S74-904; Wallen H. Hamilton, 'The. Ancient Mulm Caveat Fmptoŕ, Yale 1.J..4Ü (19111, IJ33-B7; Walter Nciles, 'Conunitnweillttl V. Htm!\ Columbia L. Rev., ~!>1 (1932), l I2tí-ŮE>; £T«wS"]s Lcyal UiidcritHnding'. Columbia Ĺ. Rev , M (1934), ätiZ-SD, 104J-7.S] Mix Radin. 'TtieRighL tu m Public Tíiaľ, Tcatple L.Q., Ŕ (l, 3Rl-^M. :1H Sec ÍJOrdDn. supra n. 4h 28-29 in., ftl i")n the íica'lll of hMi.rical selicrldrihip in [lie American law nehoníš generally, sec Daniel J. BooisEiiL, Tin American1,- Thr NaiiO'inI fixperiener (lj>ndoil: Cardinal, lySB; drij* pul?f LíňUJ-, 444. "" Kalmai], mpr/r n. 3, 37. Piesentiim li tlíti ii fcjHurc ot HohncMan Jujisfludvncc. ÜCC Oliver Wenilel] Holmes, Jr., 'The P^[h of the Law'. Harvard !.. liw.. |{l (1Í97), 457 7R Jl ■374. ('Wc lUUil licv-arc of rhc piffall OÍ aniL^UEn-mni^m., anil must rctnenibci tJl^t for mir pnrposis Our only interest in the pjst is fur lt,C li£li[ It thiols njjo-ri the picseol-'l 114 The Evolution of a Mood coufiucteur in VcbÍĽiťs writings. Those realists who adopted :i presently perspective on legal history, however, did so not simply out of admiration for Veblen's polemical initiatives; they did so because of thtii" similarly high regard for the ^orks of various brčely Veblen-inspired early twcnlietii-cenUiry political seientists and constitutional scholars. Principal among these was Charles Beard. As early as 1907, Beard had declared his intention. Lu \ubordinaLej j the p Eist to the present'.2Z The past—more specilieally, the period leading up to 1787—holds the key, he insisted, lis the political conservatism of early tweiitíetli-cĽnlury interpretations of the Constitution. The politics meiii: A Study nf Social Pressures (Ev.ui'Enn: Principe, 1949- urig. publ , 15NJS) * 2951 'i>1 Ifuwisrd b. McBahl, The Living Constitution: A Cunsidsrutioii nf tin; Realities und Lcgnuís of 0\lr Fundamental 1 aw (New York: Workcrů Ľducatkin HinciHl Press 19271 Ť-^ 27?. >Sr Chartgs hvatis Hußlies, Speech at blmira, New Yurk, 3 \Uy 1QU7, qnored jii Kaiman, supra n. 3, 40. For genera! doctrinal an^ly'^ and commentary, secD*™! P. Ourie, 'The CuruliriiEion in the Supreme Court. 1910-1921', Duke L.S., [1#55], IU1-Ů2; TEiíí CnnsEimiion in the Sti|ir?Eiie Court; [EJ2I-19301, Duke L.l , [iQiJGl, 65-144- and also Howard O^eif Hunter. 'Pruhlcnií m Scartli OÍ Principlci: "J he First ArLlemJnienl in ihe SnprCLlIC CuurL From 1741— N,'«', Emory L.J., 35 {t), ^D-137 Jt 90-127. '■"* SLevcn t-". Ij'A'&OH.'PrUürcsivch and the Supiťllie Cůusl: A Qi'c tor JudiciaC Rcíjrm in Hie lulls', The Historian, 42 (197^-80), 419-3Ů at 4-29-3U. 116 The Evolution of a Mood Parallels between progress! vism and legal realism should nonetheless be dniwnwithameasuieofcirciim^pccliüii.inilsbroadeslsense.progressivism denoted Ehe general late nineteenth and early twentieth-century idea of a search for older, of a basic social scientific endeavour to 'professionalize' knowledge by situating it within specific disciplinary categories.3,l> In [his sense, even Langdcllian iegal formulism could be conceived to be vaguely progressive, Langdeliian ism. after all, while it lacked input from ihe social sciences, represented an attempt to elevate- law lo the status o ľ an epistcmoloj-ically discrete entity through the coinpartmenlalization of ľegal doctrine. Tn a more specific sense, progressivism denoted Lhe quest to rationalize the American political economy by reorienting social Lhought away from the inequities of nineteenth century laissez-faire liberalism. In this sense, legal realism was progressive in a manner that Langdeliian formalism most definitely was not. Yet this is not to assert thai political progressivism and legal realism were ideologically indistinguishable. Political scientist of the 1520s 'tended to be liberals, who, unlike Lhe lawyers of the era, ivürried that judicial review was antidemocratic and thai lhe openness with which the Supreme Court manipulated law made the end oi" judicial review inevitable'r2il 'Suspicious of judicial activism* they contended thai restraint had to be imposed upon Ihe justices from outside the court and legal profession. . . . Seeking to limit the institutional power of the Supreme Court, progressives refused to budge Írom Lheir blanket condemnation of judicial review. In Lhe following decade, their solutions lost appeal to New Deal liberals who eventually discerned that judicial power could also serve as an instrument for piomotiug s owl reform and civil rights.*-12 it would be incorrect, accordingly, to argue thiiL realist interpretations ot the Constitution were but jurisprudential exercises in political progressivem. That some realists were indebted to progressive political science is certainly beyond doubt. Kail Llewellyn, for example, in his disparaging of theories of original intent in favour of an 'institution a I isľ .study of the Constitution in its contemporary political setting, takes his cue From progressives such as Vcblen, McBain and, especially. Bentley.2" Fred "° Sec Robert H. Wlcbe, The Searrh for Order. 1377 1920 (Weapon, Conn.: Grcenwontl Pre", 1980" tiiig. publ. 1967), 111-90; and al-m ľuiutr, supra rl. í jih passim; Thomas L. Haskc11b The. hnwrgmce of Professional Social i'ťrťftce■ ľhr Atneritan SúCNtf Sclent c AswtiallO'i Und I'm Nineteenth Century C.ri\l\ of Authority (Ulbiina; University of HEinoi'. Wet, 1077); PcEer NovLCk, Thai Noble Dream: 'fhe 'Ghjctüvity Qfpslion' and the American Historical y>ofe.34), 169-^4; Ginvanrii Tiirello. li realismů gil/ridtCO Amertrann {Milan Gluffrfc, lStö), 9&-104. The Evolution of a Mood 111 Rodell, too, followed squarely in the presenti&t path of Beard when, asiate ai 1955, he asserted that *[t]he origins of Supreme Conr£ power are of little real import today,' given that 'that power indubitably Ľaists.'2^ 'Those who see the past through the rosy glow of lablc,' hĽ concluded, 'too readílv misapprehend the present.'J3i Tn contrast, however, the critique of the so-called 'highei law' background to constitutional law—the idea Lhat (he text of Lhe Constitution itself is hut the secularization oi specific (primarily l.ockean) natural rights23''—remained very much an initiative of political scientists rather than lawyers.9"" While progressives of the 1920s insisted that the Constitution must be understood first and foremost to be a contemporary political institution, furthermore, legal realists, of the 1930s were generally intent on stressing ils tolemic function. This shift in emphasis was as fundamental its it was subtle. Progressive political scientists were concerned not so much with the symbolic importance of the Constitution as with its use in the process of judicial review to secure apparently contradictory ends—for example, lhe Supreme Cmirfs curbing one form of freedom while promoting another. Gradually, however, with the progression of the 1930s, the symbolic function of the Constitution became as much a matter for concern as iLs judicial interpretation; for1 it was with the authority of the Constitution that the .Supreme Court— showing scant regard for the principle that statutes should, if possible, be construed so as to preserve their constitutionality—effectively swept aside major New Deal legislative initiatives,2 1 egal realists—some of whom were, by this stage, active New Dealers—tended to be surprised less by the ■heiivy-handed authoritarianism of the Supreme CourL thiiu they v/sce by the willingness of tfic American public to accept the Court's decisions. The explanation for this general acceptance seemed to rest in the symbolic value that oidmary Americans were prepared to attach to their Constitution. On this point, Thurman Arnold, the Yale realist fumed New Dealer, wrote with unmatched candour: L Fecü RniSe.ll, Mwŕ Men: A Pohlilľ! History of tht- Supreme Court ľ:d lhe American Revolution (1) 11 Fhji fii , NC: Dufcc University PiCSS, 1990), David A. J. Richards, Foundations of American Cůnililiiíionah.wi (New Yink Oxford University 1'JCSS 1W)% 150-53 :1 Tili nhiísie ilhisMraSinn here being tbc wölk of tllC FlJilcetOfl constitution:]] scholar, Edward ^ t.'eil"w[nř 'Tli; "Hijcřier Lau" Background of American OonsMitiifincial LiiV, HAiwrd L. Rev., 42 [192Ä-29). 140-R.S, 3fó-4LW ^ See ľ g. Panama liefining Co. v. Ryan (15>35} 93 U.S. 35B" Sclicthter Poultry Co>p v Unin-d States (1935) 25>^ U.S. 495, Ľud Carter v Carter Coal Co. (Iv^ri) 2% LJ.5. ?3S. 2 118 The Evolution of a Mood The Constitution is praised in general as Ehe great bulwark, even though there could lie no possible agreement in the group which was pridiing it as In how that Constitution should reconcile Ibeir conflicting interests. The Supreme Couj c hovers over die whole picture, and it is lo it chat prayers are addressed. However, they arc ieatEni prayen, because the group knows that there is never any certainty as to what the next decision will be. Ycl in times of confusion and fear, there is nothing that so comforts Ihe heait [sic] of timid men as íl combination of prayer and denunciation. For this purpose the Constitution becomes for most conservatives the symbol of security in which all conflicting hopes and fears are somehow resolved1*1 Writing in 1933, Llewellyn observed that 'popular loyally' to the Constitution, 'though real, is blind'.2*0 Yet Arnold insisted thai while faith in the Constitution as an irrefragable symbol of security may lie blind failh, iE is an understandable faith, for such reverence is fostered and maintained both by the courts and by a 'scholargarchy* of jurists.2,11 Academic and practising lawyers alike take it to be 'essential to constitutionalism as a vital creed that [the Constitution) he capable of being used , . , on both sides of Etny question, because it must be Ehe creed of all groups in order to function as a unifying symbol',2'1"'1 For all that debates may rage as to the proper interpretaEi(m of constitutional provisions and amendments, what is not open to debate is ihe legitimacy of the Constitution itself. 'Arguments may occur within the terms of Llie constitution, but to attack the constitution itself is heresy.'243 Dunng the 1930s, other writers with inclinations towards realism were quick to adopt Arnold's tack. Max Leiner observed in 1937 thai the 'Constitution and Supreme Court are symbols of an ancient surcness and a comforting stability'.2'1'1 'Constitution worship'245 on the part of the American people, he insisted, owes more to emotion than to reason: 'Men are notably more sensitive to images than to ideas, more lesponMve to stereotypes than to logic. . , . Men possess thoughts, but symbols possess men/24* Essentially the same point had been made by Edward Corwin only one year earlier: 'American constitutional symbolism looks ... to the past and links hands with to irceptions which long antedate the rise of ücience and its belief in a predictable, manageable causation. Its consecration of an aheady established order of things harks back to primitive man's terror of a chaotic universe, and his struggle towards ZPJ TlHIimail W, Amurd, Tlie Symbols of iJoveritmaiS (New York: Harcourl, Brace & World, f"62- ofifc pubL TO5)ř2M>-1. í3n Llewellyn, -upru u 233, 24. '■" Tllllililfln W. Arnold, The Folklore of Capitalism {New Ha-Ľll, Conn.: YdJe UuiveiSLty Pre-*, 1537). 67. '" Ibid. 29. ^ "bid. U 2" Mat 1-crner 'ConsriLnLiun diid Couit as Symbols', Yak I.J., 46 (1937], 1290-319 at Híí řflí [bid 1295. S" Ibid. 1293. The Evolution of u Mood 119 security and significance behind a slowlv erected barrier of custom magic fetish, tabu.'247 The Modern Legal Mmd The emphasis placed on symbolism by legal realists in their analyses of the Constitution was1 by no means casual. The power of symbolism over humanity, as ceitain of their number lecognized, was a Holmesian theme.24* More than this, the fascination with symbolism was yet another facet of the general realist inclination towards the methods, ideas and indeed trends to be found in the early twentieth-century social sciences. As early as 1922, a political commentator, Walter Lippmami, had suggested that successful governmental control of public opinion depended on the political manipulation of symbols of democracy.249 In the following year, the theme of symbolism was popularized still lurthcr with the publication of Charles Ogden and Ivor Richards's classic study, The Meaning of Meaning. 'From the earliest times,' the authors asserted, 'the Symbols which men have used to aid the process of thinking and to record their achievements have been a continuous source of wonder and illusion. The whole human race has been so impressed by the properties of words as instruments for the control of objects, that in every age it hay attributed to them occult powers. . . . Unless we fully realise the profound influence of superstitions concerning words, we shall not understand the lixity of certain widespread linguistic habits which still vitiate even tbc. most careful thinking/"0 Some legal realists were quick to heed this message, orat least lo adapt it to their own ends. The basic realist disdain for 'abstract magniloquence'2"'11 in Ehe law—the respect for the Holmesian injunction lo keep Xo the real and the true'2Ji2—became, in the wake of Ogden anil '•" Edwards Corwin, The Constitution as instrument and as SymbnY, American Political Science Prv., 30 (193(1), 1071-S5 at 1072. See also Edward Steven* Robinson, Law and the I awyms (New York: Maeiiiilla», 1535), 53. řl* Oliver Wendell Holmes, Jr., Collected Ltigai Papers (New Yurk: Hnrcnijrt, Bra« & Howe, 1 yzi)), 77U; arnl see also Cohen. ,\upra n. í 17, .Í5S; i-cmcr, supra ri. 244, 125(1. Mg Walter Lippm.inn. Public Opinion (New York: HaicouiL Brace & Cit ľ>22)- and sec also ľm-LcIl, supra n. 115), 10-t-S. íyi C. K. Ogden and I. A. Richards, Thti Mcaning of Meaning: A Study Ofihe influence of language upon Thought and the Science of Symbohstn (London: Ark, 3985 one oubE 1923). 24. ?SI Max Ratlin ř '"llic UlCOlV olJu JEeial DecEsaon: Or How Ju rlgcs Till ilk', A m liarA^or. lnt.tJM (1925), J57-Ů2 at 360. -'^ 'We mu-,1 Ihink things nnl in words* or at Jeasi Wti niusl cunildnlĚy translate QUr words inlo Ihcfdicts forwhicll (licy Stand, [[we are Lo keep in ihe real and tllC tlue.' Oliver Wendell Holmes, Jr./Law in Sdei]ce4i]dS(.i(iEi(.e iní jiw\HíTn'íJfiJL. Itev., I2<Í899), -14?-(^ í,t4ůUr 120 The Evolution of is Mood Richards, something rather more grant Hose. Lawyers were no longer just verbose; rather, they practised 'word magic*.753 'Word magic', Charles Clark wrote, 'Is the bane and life of die law.'254 'Word ritual under one guise or another has always been one of the primary methods of law administration. . . . We can scarcely realize die part which sacred woids, taboo ivords, magic words, continue to play in our law.17"55 Throughout the literature of legal realism, the spirit of Ogden and Richards is nowhere more at large than i! is in the work of Jerome Frank. Just as The Meaning of Meaning was comprised largely of miscellaneous insights taken from psychoanalysis, behaviourism, philosophy, ethnology and aesthetics (to mention but some of the disciplines from wliich the authors drew); Frank's Law und the Modern Mind was a similar piece of unrestrained eclecticism. 'Legal Absolutism', Frank argue; in that hook, is a form of 'word-worship',2"^ The legal formalist of the Langdellian tradition, whom he labels as 'the ßealisf,?j7 deniíiierializei the facts he purports to describe; the vagueness of hii vocabulary airts liiui tu avoid recognizing contradictions and absurdities which his assertions íEivolvc . , . Such dejii/i[eriali£ťd but sonorous terms as Uniformity, Continuity, Universality, when applied to law by the legal Absolutist, have the same capacity lot emotional satisfaction ihät terms like Oneness, Rternity, or The True, have when applied by the metaphysician to the Absolute Although the BcaJEsťu arguments may be full of coniraiiiclion:. . . , they acquire, by means of the emotive value of his words, a compensatory significance.7^11 The use of 'compensatory verbiage1259 enables Frank's Bealist to neglect the reality of law as an activity and to concentrate instead on law els an abstract ideal, that is, as a determinate system of formally interrelated rules and principles. This concentration tin the abstract ideal, Prank argues, 'Lends to breed nilvilisLie scepticism' within the Ic^al profession: Bealism, which ii the verbal expression of excessive optimism, is sure to breed excessive cynicism. To many a young tlefilish-traincd lawyer ihe judges seem to be traitors Jo the true law; when die premised juristic parade turns out to be a f.iiry story, the whole juristic world seems drab and dull; or worse—intellectually or perhaps even morally dishonest.2^ *n Ogden ílíi,] Richards, supm n 25(1, .1(1. 234 Charles E. C ark, 'The lí curare ment oř the Law nľ Ccintracřs', Yale L.J. 42 (1933) Ů43-67 at 647. 2bJ 1-ĽíiTi Green, The Duly Prnblcm in Negligence dies', Cnlumhifi I.. ftVv.,2S (I92S), lrtlfl—í|Si Columbia !.. Rtv., 79 (1925), 255-84^1 pt. I, iQli); and sec also Stupes and Clark, «i»™ ii. 74. 714-1S. ?'ň frank, supra n. 25. í,ľi. -T Or innicliiTiei (and an lťu. vaguely), %S3cíiLc A Co.' Sec M^nV, IbLÚ 6fh-7 ™ Prank suprtt ti. 25, C7. ^ Ibiň. 63. ™ ibid. 63 9 The Evolution of o Mood J 21 It is interesting that Frank criticizes the Langriellian world-view for what ht considers to be its implicit niliilisni. In some quarters, during the 1940s and 1950s, ho hinsseli" was branded a nihilist precisely because of bis denunciation of (hat world-vi civ.2nl Still more interesting \s Frank'jí suggestion that even Ihe disillusioned lawyer Lrained iu [he Liingdeilian tradition will liave some conception of 'the true laiV. For it is coiiimonfy assumed (hat a defining characteristic of Legal realism is apostasy, in so far as those who, willingly or otbeiwise, came to be branded1 as realists were united at least in their endeavour Lo break from the lormülist belief that sonic sort of 'lrutbh resides in the law. Such jin assumption, however—and ,■' Frank's work implicitly bears testament to this—is not quite correcL, \ Rather Lhan abantlon the idea of truth in law, most legal realists replaced '- - what they perceived Lo be the formalist version of truth with their own. Traditionally, Frank argueü, scientific logSc and ľegaJ logic have shared . the same sin: both are ^invetcrately verbidistic*.262 However, whereas \'. ' "scholasticism" antl verbalising have survived in Iawyerdom . . , they v. -■ have become obsolescent (if not obsolete) in the natural sciences'.?w ;-■ ^ Having offered this unsubstantiated assumption as if it were a.n indubitable "Ví fact, Krank sets aboul outlining the problem which he intends to solve; . I nainelv, why have lawyers continued to keep faith in word magie snri, a fosdori, in Ihe formalize ideal of the complete certainty of law? The core ■_: of his answer to this question—and heie we hmč die centre-piece of • ^ Frank's jurasprndence—is that lawyers and ordinary erti7ens Slike subscribe '*- to a basic legal mylh—the myth, thatiftT (hat legal rules arc certain and that their application to specific cases is essentially a mechanical task to be \ ' -performed by Ihe courts. The reason we subscribe to this myth, the reason y - we believe in absolute legal certainty, is essentially psychological: law, for - ■ the adult, is a father substitute. As the father is the controlling force in childhood, no the law serves precisely the same function in adulthood: • ■ To the child the father is [he Infallible Judge* Ihe Malier of definite rules nf : ' ŕonduct. He knows precisely what is right and wIim( is wrong and, as head of the, ] -family, šili in judgement and punishes misdeeds. The Law—a body e-f nifes apparently devised fur infallibly determining what is right aari what is wrong and -. - for deciding who should be punished for misdeeds—inevitably becomes :i partial ■ - substitute for tlie Fa(her-3s-1rifa]hble-.Tudjst-.2&i :, '*" Frank, íiijJrcMi. 25.2S1-2. The Evolution of a Mood 123 Holmes, Cardozo and Gray,2"" and which he regarded as having been developed further by certain of his realist confreres. 'Judges, we know, ^re people,' Max Radin had :isscrEed m 1524. They cat Ihe same foods, seem moved by the same emotions, and laugh at the same jokes.'2iie 'The control oľ judges', according to Leon Green, 'is not to be found in rules, but in the fact that they sie men nourished on the same thoughts and other life-giving forces as the rest of us, and are subject to be influenced by the same factors in making their judgement as those which influence their fellows generally.'2™ 'U~, therefore, in a controversy in which we are engaged, we coufd rid ourselves of Ihe personal interes! iŕl iE. we might shrewdly guess that a great many judges would Hk-e to see the same person win who appeals to us.'271 Whereas Langdellian Is^ul science was founded on the assumption that the normative scope of legal rdfca is a matter ol 'formal certitude*.272 Ehe realist assumption, by which it was gradually superseded, was that judges—stimulated, primarily, by the facte before them rather than by Lhc rules to which those fact* might be fitted*7*—work backwards, 'i'rom a desirable conclusion to one or another of a stock of logical premises'.274 To put the matter at its sljnpteil, judge* are not inhibited by rules but liberated by tliem. It is by lesoCing ÍO iegal rules, after all, that judges are able rctroactiveJy to furnish ü:df "^tiijcts with authority. Precisely this point had been made in the eii^y Í9Ä by me pragmiitist philosopher, John Dewey. Human beings, acconjjng fo Dewey, 'act not upon deliberation but from routine, insEinct, the direcä pressure of appetite, or a blind '"hunch" \*7d Successful lawyering entails líre i-ih'ôiing of a conclusion to fit the particular hunch:"0 Oiie judge, by Ehe late 1920s, had the candour to confess that the Deweyan—or, as lie saw it Rabelaisian—notion of lawyering by hunch sceined to capture the decision-making process to a T.377 Indeed, it was this 'discovery*—the revelation of the 'hunch' as the primary factor in ihe decision-making process—which fuelled Frank's scepticism with regard Lodic nature and 3M Ibid 391 131-3. 252-5. 270-7 ™ Ridin, j.^« .,. 251, 359. ™ Green, supra n.255, pi. l,pr 1ETC1. nL Mxúm, sfpm n. ?5], 359. "' Ynlcnidi, "["he Hornbook Melli.id and ihe Conflict of La^s^-j.^.ij n. 73, A\% "s Sec Oliplliirit, supra li. 72. \6l, also suprň ti.14, 132-3. !T" Radili, supra ei 251. 359. !7'- Juhn Dewey, 'Logical Melliud und inw', Cornell L Q , 10 (1^-), Yl-21 at 17. With regard to this article, see (Shilling, supra n. 12, 467-0. Dewey, supra 7^275,23" and see ihn John Dewey, Experience "1J Valiirf (New York■ Dover, IEJ5S), 272-3. ?" Joseph C. HnlchesOLl, Jr., The Judgment Tntuitivo: The Function u" the "HlllltK" in JirdiciaI Decision', Cornell L.Q., H (1929), 274-88. IluSehcsnn apparenll ■ i-tcr qualified [lis TJůiiLiůrt. See Karl N. Llewellyn, 'Oil Rejding and lining the Newer JunEpř^íct", ťWŕďnŕjŕ? /.. flíw., 40 (1^(1), 531-ůl4ar.Ď04 '.SHOiLii'lo [cnipiif-ju ípn]S?ipm.il|51]3 -tíoj ai[l UU o3bXo.\ >,JTi3ii?ii]i? uií VO ■ qinpiig o> ^[-.Kiipsail S3 LlEl» | [úd .i[ 'jicdino^ iH! Jp ú —t»t '(ESůtJ H t,r7^i7JS,í7."/0±.^'>LOiE3ÍsrfPu,í3u31]liy-ľJC,Jl™EPiif, '^utJH 3U](]Mf rtD Č9-+ÍE 'íflEíitV l>ť ,fJ."rJ^ /ů W V"/ ',3uij|ulhx |iTĽ)[pflf puť sisíiiiUB-ip5% 'hci.^r-i q pjoii^h jj$ ^ aAiinstqo ,([oind i: si, 'píiquídxa isiftoioipAsd ÍJnni^-qiajluaMj Äjjca auo /ai ň/A^iň. tsjjnoiAiíqaq =>qj kt; A"3o|oq;>Asj, ■ shoze m iinq"! jo pRpuoa 3U.1 IOI1U03 53T]3pOS UlZjpOiU MO[[ 10 lUŮiqfJlJ Oqt OJ A"í3ui51jaJ3UI SUOllII^ÍR jpi|a psu.ini sitfjiuaps pjiaos si; 'jq^noni. |Gpos iujousuiv uo pudím .tsEuisjis; ups i? a^umi &aii]jiA sqi pgsnodss ^uüjj ^[liíj^v UWIMWJpajJ piSO UlSJJUUlollJ^l 'ÁgojOifDÚGcl jrr]rio i) Jüd Xtiii ui *í^,,s^uiiai jo .morAĽqsq 3q] ioji.aq puEi^ispun oi os [tí "inq sasťfq umo igq Jos]i| A'pauis.i o» Xiuojou Ap-^ij aq p|noA\ '3J0LLllůi|jj[1]. 'sjaíníuiäOqsA'hd 03 paaoalqns Xm^ipou^d si oi|w 3?pn£ sqx "to^qjnfoiď jsoqj jo sort|3Siuaiji Suippu inoqis ías 'soujiibssuuj ui 'oíib pfnott liiq ssoTpnlsid ji?e|i j^^o^STp í[uo lou p|iiůjVi &aiípn[ 'bis^ieiipoqí^&d 10 spoqjaiu ?qi oi ^[íii.iosst A"q 'aiiqi paiunhsír ^iigíj "[ja^ssiř^ a^r] musHg pjisos SR suojiiíiiiuq [iA\oji:iqi oiUOCUrAO oa 'siqtssod se: jkj of ^puujo aicwi! OUUKřOq 01 2Ľ il!, .SlSIJlGiqO^Ed .TO SJSjSoiOqn.ťíd SU ]0G A|HII?aSLLOJ JSHHI. ----L!!rUliq ^lOJSq ^1.3A\S3IÍ-| piOJRH 'lS}3iraT3S pí3tjl|t)d ^qi pRlj SI?—3AÍ>Jpq Cíl pOOffl lifo UOjíllfOATj jy_i \-rn~ i'Í-- tlli-EJÍ1* £[ti"ít) ti' ■l5ü "7 c^j«í:J /? '.PUÍIH P^l"1?^! ^^prif uľ 'uoiuju^a Jm"5, 'X«^íi JUlLMJf J3S ■ 0-J11 ^[(| JO P U J 3l)| jn=U 3UJt J !Ul[Pq F5|l|l lu uuiíSSjdxn l[l^Pb^í|J ["'''il S,!|UťJ-| íh? UV uis-iirjd [I3!J3-| JU S1IUIL-I JL|J.. 'PJWpOü^V mM*0 WW ^-- pui3 \yi-i,ZZ P'-W it; 01 ami's 01} %saĚ[in[ puu S-iííÍAMTk -íisouätiip 1? sľ jpw sir ojnj pjued ir spiňOJd ospj iqSiui /í^oioq^Ásd iťqi íiqjqisnod g([i p^jspisuo^ 1! ^J03 "^" 1R 'Sil? Ul^ll^^^OJ I^^l pailfŮJI A"||FUl3U0 ífUiAllT-I rA\3IA-p|jOAWSi[l^J [EJ3U3S sjoiir u jo sojugisui jriq ajE qougAL. 10 sjoqio '?|joa\ eiWO siq 01 siilnim WB ipiqM jo 3UIOS :^^j?[iif jo Xi^uifA ií uiojj ^fíRi siqj p^qoROjddi: ^[Ilí.i-1 Jpujiu ii.ispOLu pan: 1 ii]sod !.iij jo uúlpijjjsj [üEioim3!15[q ur onu p^uijojsurji sq jqtfjui uia^H "IR([] *oi[ 3uiísi3iíJín.s jo iTiq 'psjjoddns ^rai ]t qaiqM iq ^íoa^uju.tj ^iSo^upad Ul!l[[npSUR7 3qi p[||? Uj3lSiA"s." JEtfö] QRJUStUV 3^-1 jo sqi 3q] 2üU:iA03üll JO :-.i3i G p gtjiqjTiuios 3uu(jaac| piíq ^AjiosdM^d isTp?uuoj-putä JRqUJSd UMO Sil] iei|j A"[[RJOAjiibůun puĽ íjiu^nbaii os ^iusiiľojj, pa^ĽJiirq peq ^urjj 'sfj^i iqiinoij^noi^^^j.'X^Kj^ouiapiwpsiíj-isodR jo jsíjXj&z oissq ny] niasíijdoi 01 aAijq [)|jiom—p"! |G3jJoj3qj iípuuq R'iieqj ojoui aq oj 11 a.rsAi—pujiu pajjco-O'v Hfqi iifm ^zpjífojgj 01 ttuq paojoj eusizr^ jo ^jpsds aqi 'i3&ViE[ p3|]iEuui03-U0Q Xiieíjqjíí 'ííuTAiíJO-íiiiTLjjaj 'TunsJfiumi a~||r;) jäú[Oip&rd aqi jo uisiiRAjasuoj aqi uiíomsq 03 pním uiapoui jqi jo i^opi aqj p^ifojdK? [1ei| sq 'Síj^GI X[J|:^ sqí 3i-iunp *sE3J3qM '^iibiiu^ ist]ľUUoj-i-iuf j.o d\áis AjojĽjJoq ,í|?iri&irTiaiq tru dopAsp 01 uu^aq aq 'j/uifM uwpoitf aifi pne míi-j jo iiui^iod Sňil^njisuojQi] ApjBLUiipi ji ,äui(ŕ!jR]]qxa aq] J31JV ^skiJIS o» süa\ ^íiií.ij; 'psjouläi ippSuiri qnu|A\ sioiJRj gsaqj |[\/ |í;,qppiíiiE"[ oj (síí3|H(itui?íilu íiiq |[r a.iojsiaqi sv/a puRj u^ou^un ,íjjľuij|a spav—suo]iudO ijtioj -líddti ui pasopsipUTi si ;ri|1 3uiq]A"jaAa—ssim e jo „aiaqdsoLUHi^ oqi dn aXGtiJ oj 0^ íEq] siLi^uuja aq] 's^finľjosuoiäouja aqjij] frjRaddií g^Rj-oj-aocj ^qi '[[^iji r m psAjOAUT sjoi^Rj |Euoi|«J-uoi] sRü.K>iiinu aqj 'uoiiR^aJ lu^qo -itáľňT3\ aqx. ■ no(13tí Pur g^u-atiadxíf ueuiuq sr ui?qj JaqiRj íiäo[ sr /ak\ ^i|] jo ai|[ ^iq] 101 Xpios pjť^ai qiw ueiu f: ^^s^ooq u; issiajui aAisnpxa M'- isoui[ií piiR aAis^^sqo uif, Aq passasíod ^^japií-i^qa i^ldR^sai jiiojn^u, ""*' \- Q^aq ppq 'paAai[3q ^ucmj 'ji^uiiq jiap^UEq 'lusqEiiujoj UE!i[i3p3ui3r[ ju uoii^^íaj is|[if3J sip sjziuioiid? sTsaqi-q^unq aqi jo tŕupĽiqEtis s^uwjj híí£"a*u| aqi Síi^Riu, *p-nT.sj.su 1 3i{ .'saq^uiiq stg3pRÍ oqi saaiipojd JSASi^q^, -sápu |u3a[ jo uoii3UTij paofii o jo uoiaijíiAfi 3\n YĹI 126 The Evolution of it Mood experimental branch of natural science. Tes theoretical goal is the prediction and control of behaviour."ss Behaviourism thus offered the piospect of tbc icicnlific study of social control. 'Behaviourism promised the scientific control of life to a generation who felt their fives increasingly out of control.^ It was through behaviourism, accordingly, that nodal control became piirtiil Ilie coin inon currency of the early t went! eth-cen tury social sciences-Owing So its emphasis on the conecpL oľ social control, furthermore, behaviourism became a distinct social scientific facet of legal realism. Concerned 'with law conceived as human behaviour instead of the traditional body of rules and concepts'/1"' behaviourist-inspired realists argued that rules arc essentially stimuli for piompting particular kinds ol" human response.3'"*1 This argument is epitomized by Underbill Moore's so-culled 'learning theory*t which he developed in his study of New Haven parking oflenccs. The motorist's behaviour is determined, according io Moore, 'by the relation between four faetorů - drive, cue, response, and reward—which relation he has learned, or is learning. In order to leans one must be driven to make a response in Ihe presence of a cue, and that response must be rewarded,>?yz The necessary 'drive' of which he writes is prompted by legal rules, for it is such rules which—for example, with regard Lo the regulation of traffic—provide the 'reward* (that is, the omission of sanction) for the individual motorist's compliance in learning the appropriate responses to the relevant ordinances. Moore apart, however, legal realists generally were disinclined to apply the methods of behavioural science to the study of law with any real rigour.z^ Indeed, in so far as behaviourism made any significant mark on American legal theory, that mark had been made some years before the emergence of legal realism—with Ihe publication, to be precise, of Joseph Bingham's article, 'What is the Law'?' in IEH2. In that article, Bingham iö JollJl Er WbCsqíIi 'Psychology ^s a Behaviourist. Ylewk EĽ, PsytliiíFagiLůl Rev., ZU (I9l3). 153^-77 al 156. ^ Ho-*, supra n. 139,312. *" Ynicma.. wpra n. 14, 31 ň. ■"' Seč e.£. Ulldcilllll Moore, 'national Hesíh iiľ I .egal IcisIíIuIldhv1, Columbia L. Rev., 23 (1923), ft09-í7 -Al litü- Olipliam, utprti n 74, 137; and cf. alio Kwnhlc, j^iran. Ifi. 1Í9-Ů1-SuJlimciR.supian. 19, fiy—'>; d. Ľdwjrd Wtule, 'FrUui Sůdulůj>ical Jurispludenecto Eicalism: Jurisprudence and Social Change !ri Karly I wcndcibi-Ccnlury AmenĽj'T Virginia Ĺ. Rev., 53 (1972], 999-1023 at 1015-16. 1'"1 Situjrc dnd CdJlaliiici, Miprii n. 126, úL For critical cslimatioTis oí ibis theory, nccCIírk Lr Hnil, 'Moore anil CalLahan\ "Law and Le^Fiiinjj Theory"L A P&ycll0lOj?ÍSt'& Impressions', Yah L.J., 53 (1944), 330-337; Hcssd H. Ynt«™,L "Law and Learning Theory" tUrOufil) the Liiokinjs Class úl LessiL Theoij', Yak L J,, 53 {19*14), 33&-J7. 255 Sec Kaiman, supra n. 3, 1Ä-19" David u. riu|CE*o[[, 'Kail Lfcwcllyn, American Legal Realism, «nil Quitemporary 1j;gil EJehaviouralism'. Eihics, 7Ů (1966), 253-úů at 263; also, los a critique of behaviourism as applied to ľaw, cf, Collen, supra n 117, 3^7-nO. The Evolution of a Mood 127 developed what was to become the trademark realist view that the formalist notion of [aw as 'a system of rules and principles cnlbrccit by political authority . . . is fnndamentally erroneous and . , . a bar lo a scientific understanding oľ our law'.2''1 Properly understood, rules and principles are but 'mental tools'—ideas held subjectively by those who think abotit law—to be used to explain human responses to authoritative governmental control.™ Law, accordingly, is 'dependent on the existence Ol authoritative government',2'*' and l[t]he practical interest of lawyers and of laymen lies in Ihe concrete operations and effects of governmental machinery and not in generalizations excepting insofar as they cause, explain, or indicate such phenomena/357 'J he scientific study of law, then, according to Bingham, consists of analysing the operation of judicial machinery with a view lo predicting future decisions: 'cases past and potential are the essential substance in the field of law Past eases are experimental guides to pjognosticalions of future decisions. '2lJS By 'observation, report, induclive arid deductive reasoning and the other methods of scientific investigation', the concrete phenomena of authoritative government 'may be generalized into inles and principles'2''''—rules and principles deduced not by way of Langdellian speculation, but by treating law as a practical activity. Bingham ivas, in essence, attempting to take the pro to-realist insights of Pound and Holmes one step further by appropriating the already established idea of science in law and pulling it to a more progressive use. No longer, he was arguing, need science be the preserve of mechanical jurisprudence, for the foundations of legal science could be re-casl in order to serve predictivist ends.. While Bingham's argument hinted at behaviourism—not to mention the piedictivfst rhetoric of Holmes^1"—it was, more directly, the broader philosophy ot pragmatism to which he seemed to appeal. Pragmatism brought to late nineteenth and early twentieth-century American social thought the idea that science could be put to the .service of **- Joseph W» Bingham,'What is ihe Ltm'ľ, Michigan L. Rev., 11 (1912), 1-25.109-121 at 3 Fur a discussion o( Bingham vis-ů-vís le^al realihm. see rYjirjgoi&e MiciuuX, UlXr.ole de in 'SariQtogiCQl Jurisprudence" cl !e Mn/ivwnem Rwlisle Amťriiain: Li- fti>U du Juge el la 'ihfortedu Droit (Doctoraf dissertation. UniveriiJc dc Paris X, Nantcrrc, autäét univsisiĽairc 1984-5), 1ta-23 :M Hinghiim, si'pm ii. 294 9-11 "'* Ibid. 10. 2SI Jtw,cph W. KmghaJll, 'Science anJ Ehe Law', (jrwn Big, 25 (1913), llS?-7 iE [(,4-5. ľLIH Bingham, suvru n. 294, 17. ™ Ibid. 9 *" Compare Uingliaill, stipra i\. 297,1Ó4-.S with Oľivcr Wcllöell Holiiif,, Jt-,' Ľfic, Fflfh of the. r_aw'ř Harvard L. Rtv , 1(1 (lí!97>T 'Í57-7JJ at 4^7. 12R The Evolution of a Mood understanding social change/"1111 William James, in 1911i. wrote in defence of pragmatism lliat it could 'remain religious like the rationalisms, but at the same time, like the empiricisms, it can preserve Ehe riebest intimacy with the facts',3"2 This was precisely the claim which Rinyham made with regard to jurisprudence, if grounded ^ predictivism, jurisprudence could maintain ihe scientific pretensions beloved of I.an gilt Hi an formalis-m while outstripping die limitations of such formalism by establishing an intimacy with the facts of law. The key to achieving this near-paradigm shill was for jurists to conceive of law not as a sialic body of rules and principles, but as a phenomenon in flux. According to John Dewey, writing in the same year as James, pragmatism required philosophers lo transfer their attention 'from the permanent to the changing and, rather than seek to establish universal certainties, treat their discipline as 'a method of moral and political diagnosis' anil prognosis'."1"3 While the value of prediction had, of course, found early juristic recognition in the writings oi Holmes, iE was through the pragmatism of James and Dewey that the activity of prognosis was elevated to the status of a science. Holmes bequeathed to lejnii realism an implicitly anti-Langdellian notion of prediction as a legal activity. But it ■was a fairly modest, pragmatically specific activity—the activity, primarily, of gauging just how far individuals might be able to tread hclore becoming legally accountable for their actions. Pragmatik! philosophers, ironically, treated the activity of prediction as a less specifically pragmatic affair. Til is much is clear From the manner in which early twentieth-century social theorists looked lo the philosophy of pragmatism for scientific inspiration. In its emphasis on prognosis and prediction as peculiarly scientific means oF understanding social change, Ihe philosophv of pragmatism'lifted well with the then prevalent spirit of social-scientific realism. The capacity to predict—especially to predict ^scienlineally*--was, after all, but another facet of the broader elhos. of social control. But predictivism, for social scientists, was more than just another tool lor understanding social change. Its acceptance as such marked an important shift in social-scientific outlook: The realistic semeli Nir cotk.t*;(c experience continued as a new rraüly tüniimtallv presented itself for observation. . . . Yet even realism he._g.fiJi to change under lln: 111 Sec Daviil Hoi linger,. '"iTic Problem of PragHians:!) in American ÍIisIufy'. lni. ü[ AniňTimn His/ory, 67 (19S0), 88-107. 1ÍM William Jame*, Pragmativm-A A^iľ Wurm* for Sv"tf Old Wuysof'l'hhik'mg (New York: L.mpnan';, Green * Cn. lí?lt!), 13. ÍDj .lolin Dewey, Tlie Influence of Darwin im Philosophy', in John Dewey, 'Ihn MitltUe Works, IB'19-1924 (15 vol*,, ed. J. A. ftoy.islori. i^rhoncialo- Southern liUnois 1 ln.ivrrs.irv Pec:.*. 197Ŕ-Žtt),TV, 11. The Evolution of a Mood \ 21 impact of mcdcrnism. As Hie social scientists begun lo see j acts as pr/oces1;, tlie CDTiercEc reality they suugbt tn grasp receded into ílu*. . - A science of natural process tended tu drive beneath Ehe level of concrete f íl c is in causal process." Social-scientific realism, then, was supplemented by a predietivist-inspired emphasis on causality. The upshot of this was that realism, in a social scientific context, no longer meant the discovery and analysis of the (acts which constitute reality. Rather, it denoted analysis of the processes by which those facts come into existence—analysis with a view, furthermore, to predicting how, and indeed what manner of, further iaels will come into existence in the future. :' For all that legal realists rarely utilised it with much conviction, this scientifically premissed, prajrnialisE concept of predictivism became, for mimy ol them, almost as basic to their thinking as the juridically specific prediction theory nľ Holmes. One possible reason for this is that the pragmatlst inclination towards analyses of processes complemented the general realist concern with judicial procedure—that is, with process— 'over and above legal doctrine.?0f Karl Llewellyn, for example, took the 'view thai 'almost the only way to gel deeply under the skin of a pre-science about behaviour in matters legal is by way of the detailed processes which lead to the larger phenomena—watching the men, within the institution, - under the impact of fresh stimuli1.300 A more likely reason for the general realist tnrn towards pragmatism rests in the fact that the philosophy -had already been applied to Law with some success by Pound, Indeed, the concept of social engineering rather epitomized the pragmatist ;cthos that scientific knowledge about law could be made useful.307 Those legal realists who looked to pragmatism to give scientific credibility to their Claims about the legal world were looking to a philosophy which they regarded as juridically tried and tested.™ Their use of that philosophy to , lurn the process of legal prediction into ü purportedly scientific task hardly constituted a radical step forward either from Poundian proto-reahsm ui even Langdellian legal formalism. This much becomes especially cleat if one considers the question of what purpose legal prediction was supposed to serve. The immediate answer to 'the question is the answer which was offered up by certain realists: predictivism provides the key to the study of hiw as a modem social "" Haw, supra ň. 139, 318-19 SIJ Sim: R umbl c, supra a. Í93, 250; Kn I m jn, mpra n. 3, 2t>; Stevens. SUprli tl. 45. 56; Cil ant CJLlmott. 'L&w, Logic nnti Fxpiiritiiioc', Howard í. J., .í f J 057), 26-41 ;ll .'■&. ^ Llewellyn, supra n. 75, in-ll '" SccNnEc [Rund Rosenblatt],'1 cjjh I TJieü] >' and Lew E EM u ration', Yttte L.l.,79 (I'I7U), llijl-7fl at M57-fö. ^ Sue Villoma, íMpíd r>- 14,322; Welkin! \upra ri 281,703-4 130 The Evolution of a Maud science. 'Surely progress in Ehe science of law', Writer Wheeler Cook claimed, 'consists in continually refoi imitating nur generalizations so as to make them bring out more clearly j ii&t what the past phenomena described really aie and just whaL we predict will huppen in the failure.'311'' Similarly, for Hcrnun Oliphant, '[tjhe predictable element' in the judicial decision 'will be the dominant subject matter of ;my truly scientific study of law.'3111 But jiueli an answer simply raises the same question afresh. Even if it is granted that prcdietivrsm provides ;i key to Ehe understanding of law as a tudal science, why should anyone wish to conceive of law as such :i science? What, precisely, might the appeal Eo social science achieve? Throughout the literature of legal realism there runs a distinct cagincss ivilh respect to this last question. Conspicuously little effort was made by any of the so-called realists to explain why, exactly, the integration of law wilh like broader social sciences should prove to be such an enlightened initiative. By the early 1940s, Karl Llewellyn, for one, was willing [o concede that realist aLLcrnpĽš at such integration had not hccii a success;1" and, indeed, from the mitl-193l)s onwards, lealism suffered a gradual institutional and intellectual demise as its proponents became evei more indifferent and even hostile to 'the clumsy jargon of the so-called social sciences'.3l7 Disillusionment with the social sciences was, of course, only part of the reason lor Lhis general demise. The cause of the disillusion men t itseľf is crucial to any detailed assessrnenE of legal realism. In appealing Lo Ehe social sciences, and to pragmatism in particular, various legal realists discovered what they considered lo be a vital conceptual apparatus for articulating the essential 'realism' of their particular perspectives: the social sciences provided a pathway to (tie Legal facts, to the reality of law. This social science-induced realism turned out, however, to entail its own brand o! formalism. And while it would be hyperbole to assert that so-called realists were 'l.angdellians miilgré ťMJ'',^""1 it is important noiiĽEhe-less to recognize the formalist elemenEs implicit in realist thought. The essential purpose behind the realist stress on predietivism was the promotion of certainty in law. Prediction entails focusing not only on legal rules, biiE also on other factors which might ellecE Ehe outcome of a ™ Cook. Tirjsra n. 70, 4&5 "" Olipllillir, supra n. 72, \5$. 11' See Karl N. Llewellyn and E. Adamson Hciebcl, The Cheyenne Way Conflict tint! Case ÍJ2W m Primitiv? Jurisprudent^ (Norman1 Univeisily ol Oklahoma Fress, 1941). 41. ('Ffii.il ail« cfioii at syiitLicsJ£. of tnc social «liscipMri-Ls. míľr iht pjsl Leu years lias made worthwhile headway ij] dli phases, except iliaf of integrating laÄ-stiifF *irh ihc rest.') The lanmuye is unmistakably Llewellyn's, a iW which L1, cun firmed lyE. AdaniSQl] Hc-cbcL, 'Kail I. Icwcllyn ■ Alltiliopologicai JurLspiUdc', Rutgers I.. Kw., \H (lyM), 735-44 al 740 fn 23. 3tJ RodelE. supra n. 130, H-b and sec also Kaiman, sttpra n 3, 42. J[J Gilm.irc, supra u íi4, 7ft. The Evolution of a Mood 131 deeitfion—factors such as the known preifilecLinns and background of the judge. Such factors are HkcEy to lie important for the purposes of ensuring consistently accurate prediction.^'4 But what njighL this he taken to imply? The implication seems to he that judicial decisions 'could and should become more predictable'.^ But just how predictable? Are we Eo assume that an ideal legul system would be one in which all future legal decisions eon Id be predicted? Certainly no legal rcidisE was so naive as to treat such an aspiration as :i real possibility. However—and this is the important point—the realist notion of predicUvism as a science is founded on the idea that the aspiration is a worthy one. That is, predictivist-inspired realism treats as notion ally desirable Ehe lacilitalion of a formally certain, 'prcdiction-friendly' system of law. At the same time, Ehe general predictivist quest for legal eerEainly betrays an implicit fear of judicial discretion and incertitude. And it is thus that realism, certainly in its predictivist guise, appears to atEempl to discredit one formalist conception of law only to replace it with another. This much j s clear from Max Ratlin's analysis of the nature of judieial decision-making. Having expressed his dismay Over the Langdellian tendency to treat the legal dispute 'like a nickel in a slot machine',3"1 whereby Ehe correct result is reached as if automatically by the judicial application of the appropriate precedent, Radin argues that the business of legal realism—as a reaction to Langdellian formalism—is prophecy, through which Hwe can come fairly near cerlainlyV ThisT it seems, is to denounce mechanical jurisprudence in one breath while rein sta ling i I in the next. The assumption that it may be possible to predict future legal decisions with considerable, if not quite total, accuracy is hardly less formalist—is hardly less supportive of so-called slot machine jusSice—Ehan the basic Langdellian belief that legal doctrine is reducible to a handful of common law principles which may be applied uncontrovcTsially to future legal disputes. This is not to claim that the formalism of legal realism was intentional. Rather, formalism persisted foule de mieux. Legal realislji had heen fairly successful in adopting social ücientific methods and insights to criticize the 1[* OÜphant, supra n 74, 130-32; and SCC al&O Summen,, supra a. 10, 143-4. 3ti Rumble, iupia n, IB, M0- 3"J Radin, supra il. 251,355. 117 Karfín. ibid. 3í>í- and lí. luCllier, for a detailed proniiunccmeni i>1 this piihiliün, Kart N. Llewellyn, TJiť Co'/imon !.aiv Tradition: Deciding Appeals (Boston: LUllc, Hrown ACa., ľJňft), 302-3; The Cu1Ľ Lctrf System m America (P. Gewirkt ed., Ehr. [rana. M. AilSafcli, Quca^o: University of Chictgu Pre*A, 19S9- rrng. German publ 1933), 76-89. Max Radin. 'Gi« Law and Stare Decisis: Concerning ľräjudizienrethi in Amerika1. Columbia L. Rev-, 33 (1933), l9*-ai2jit212;LtmL.Fillleťl 'American Legal Realism*. U. Pennsylvania L Rev.t »2 (1934), 429-Ů2 at 43|-J. On the rcaliht quciL tur certainly, sec generally Charlc; Fi. Glark and David M. Trubek, Tlie Creative Role of Ehe Judge Resiraint and Freedom: in ihc Common Law TradiLion', Yah L.J . 71 (l°ůl), 2J5-7Ď al IrJ-Tfi. 132 The Evolution of a Mi>od laissez-faire formalism of tlie courts. It is significant-, indeed,, that those legal realists who attempted this task—Robert Hale was exemplaiy--tended to l>e academics with a more than casual interest in interdisciplinary study. Owing, however, f o si mixture of reluctance and inability on the pari of most legal realit to pay little more than lip service to the methods of the social sciences, the utilization of interdisciplinary perspectives to criticise Langdellian formalism, fared comparably poorly. That ceit;iin realists turned the prcdictivist element oi pragmatist philosophy into an implicitly formalist method is indicative of as much. The same is illustrated, tooT by [he manner in which some realists embraced Lhe concept of functionalisiiK For such realists, ľuuctioiralism, as Feh"k Cohen observed, tended to be little more than a synonym for pragmatism.-11^ In fact, the use of the term 'functionalisni' by certain realists was usually bal an intimation of their desire to demonstrate a peculiar form of legal certainty—of their intention, that is, to dig beneath the conceptual facade of law and tell it as it really is.1"1 Willi am O. Douglas, for example, declared that a 'functional' approach to the law of business associations demands 'a consideration of the phenomena, observed in the organization and operation of a business' rather than an examination 'of the mere form itself of business'.™ Such an approach 'would result in observations of [he things men attempt to do and are found doing when engaging in business'.''3' For Cohen, the problern with approaches such as [hat adopted by Douglas is that they arc not, in any specific sense, functionalist. Indeed, those realisti who attempted to appropriate the concept of functional ism by and large lacked the inclination or the imagination to develop and apply iL in íl legal setting, *Unfortunately,' Cohen lamented, 'certain advocates of realistic jurisprudence, after using the funeli on al method Eo break down rules and concepts into atomic decisions, refuse to go any further with the analytic process.'323 JIH Collen, supra n. VIZ, B21-1? 11,1 Sen Kaiman, s«pm a. 3,5-10,30-1. v" William O. Dpiislflh, 'A Functional Approach in Hie Lam dclLijin formalism' 'The Éiirlflinnalisi tllUS* have recourse In the logical irtümmcEils lhal analytical jlErifpriultncc íumiůlifis. Analytical jurispnulcTiĽii, in t»rn, may dr^clnp more fruitful mode; i,1 analysis 'vLili n belter understanding of the tow-in-acliOLl.' Felix S. Cohen, TllC problems of a Functional Jurisprudence'! tfntl L. Re\>r, 1 (1937), 5-1& al 7. FOF a critical analysis of Cohen"1, o.Vil application „1 the functional rncchnd lo law, ^c Maitin ľ. Goldiiig. 'Realism and function all;™ in the Legal ThmiJiht of FtaLix S. Collen', Cnmi-ll L. tfrv ,ŕift {líl<3l), 1032-57 at 11)51—7; and cf, alfo, moLC generally, 'Jurisprudeiitial Symposium in Memory of Felix S. Collen', RiüfpfS f- Rb\\, 9 (1954), 343-47í- Thr Evolution of a Mood 133 If should be recognized that Jerome Frank—with whom, originally, we ivere dealing—regarded neither fundi ona li sm nor prerJictivisni as a useful legal tool. Indeed, with regard io predict] vism he con id be particularly disparaging. Since the outcome of any particular legal decision will depend on the variable instincts of the jnrlgc or die feelings of die juiy, the queüL for accin-atc prediction must be 'doomed to failure'.^1. Psychology demonstrates precisely (hisfacL^4 The concepL of helinviounst psychology with which certain realists had tfabhled during the 1920s was premised on the idea that the human mind responds rationally to given stimuli. I< is the essential rationality of human thought and iiclioii, indeed, which, for the behaviourist, allows for the possibility O ľ scientific predieLion. However, as E-'rLudianism began to make ite mark on American social thought during the 1920s and 1530s, legal realists—anil Frank is exemplary here—began to conceive of psychology in a somewhat djlfcreut fashion.32i To put the maLter simplistJcaUy, rationalism in psychology w&s supplanted by irrationalem.3?& Edward S. Robinson wrote in the mill-1930s that '[i]t is especially important that the student of jurisprudence should oľ aware of the nature of the psychology written by Freud and his lollowers\3Z7 since Freudianiiim demonstrates 'the possibility of viewing human nature with a new honesty and a new detachmenL; it has shown us how to look behind the rationalizations that men give ol Lhcir own conduct and to view candidly any motive whatever Lhal may be discovered there'; indeed, It is just this new psychological detachment that is needed as a basis lor a naLural science of lhe law. In no field of human endeavour is it more precarious to take human nature at its own lace value than in the field of social legulatioiT.328 Frank, though he approached psychoanalysis in a markedly more casual fashion shan did Robinson, similarly adopted the view that psychology generally provides a strong theoretical basis for criticizing the idea of legal rationulity.32"1 That is why he was keen to see psycho analysis established as part of the judicial craft; and it is also why he rejected the more general realist view that there is an implicit rationality 1S: Flank, su.pia n. ľi, jot, *fl Tbid 12ft fsi. 13, "^ On lhe impact of Freudian pnyiľhi.aiialj&is tf> the United Sl.iles, sľí Nflfhan O. Jídle, Ji., ľ'fluil ami il\r íiiicfjLiinj.- The Hr^miii^s uf'T'sycUoanalviv. hi Jfit Unheil itrrlrj, JSÍtf-1917 (New York: OxFnrtl UnLvefsLty Prc^&, ľ>7tj; Haroltl'li [.a^wcilL, 'The Impact of Psychoanülytit Thinkllia on the S(](.]j.[ Sciences', in 1. D White c[ []ic jury astern, st-t J^Lrxlmiy, 'Jerome l-'tauk aiut lhc Legacy Of I egal Realism', supra u. 3, 188-9. ™ Frank, ííyjHr ]i. 27*, 11Ů. The Evolution of a Mood 11Í5 Baalist than realist,-13'' and iE is odd that Frank should have offered il, given ibal he claimed more generally to reject the notion of expertise as elitisl and undemocratic.^5 Fifteen years after his initial denunciation of childish legal thought-ways, he lamented that 'perhaps . . . despite my years, I have not yet fully matured'.3""' Law and the Modem Mind had fallen 'like a bomb on die legal world^;317 and ycl, as with many a succěs de xcandate. it ultimately demanded more of its author than it did of anyone else. In rejecting the jury system, Frank had implicitly celebrated the verities of legal certainty and tradition. And it was precisely thus that he trapped himself within his own realist critique. LEGAL liRAUSM *ND LliUAL U D UCATION Frank Eiimself seemed to be blissfully unaware of this fact. Almost two decades on Irorn the first publication of Low and (he Modem Mind, and nearly eighty years after Langdelľs appointment as dean at Harvard, he was still vilifying the legacy of Langdellian formalism dm brio, even if his peculiar style of disparagement had, over the years, acquired something of a const i uctivé edge. Whereas, in his early writings, the poverty and the popularity of the Langdelhan legal world-view was attributed to the widespread if implicit acceptance of ihc basic legal myth, in his writings from the late 1940s onwards he began to stress the pervasive effect of 'the myth that upper courts are at (he heart of court-house government. This myth induces the false h el ie f that il is of no importance whether or nol trial judges are well-trained for (heir job, fair-minded, conscientious in listening to teslimony, and honest. In considerable part, this belief arises fiom the fallacious notion that the legal rules, supervised by the upper courts* control decisions.'333 Although Frank was not the firsl legal realist to draw attention to this so-called upper-court myth,-1-*0 he was the only one of their" number to accord it especial juridical significance. As with the basic legal myth, the upper-court myth was very much a part of (lie l^mgdellian scheme of things. Langdell himself had founded the case method on old English appeal -"' See Warren J. Samuels, 'Joseph Henry BcaleTs Lectures on Jurisprudence, tQflQ', IJ. Miami L. Rev., 29 (1975), 2GQ-333 at 292; DuXuurv, 'SomĽ Radical i hui about ItcallSLllY', Sltp'il ll 3, 29. -|J) Jerome Frank, The Place mnkb 'What CimiliiuUK a írnrjd l-C^ll EducationV, American Ltt<» School Rev., 7 (1933), S94-902. ?JŮ -Sec Jerome Frank, 'Why N«t ü Clinical Lawyer St,hoí]J?\ U Pennsylvania L Rev Hi (1Í33), yiJ7-23 dL 014-23. 141 Sec Steven^, supra ll. 45, ä(i5 n. 14- Jiihn M- Lľildsev, 'JüJin SiLsgcr Rradway -Hic TíecIc^ Pioneer of Climcal Eduction', Oklahoma City Unlv J.. Rev., 4 (N79), 1-16. 24>t Sec Robert ítcvcTU, "JVn CIlK i & fůt lfl70:Thc American I aw School', Pempeclivp* m Atnerhan Ilútary, 5 (lf71)r 403-54:8 dl 491-2- supm n. 45, Id?, 2J5-I6. "'' $cc Allele Aub urLÍn, ' Amerikanische RaChLSciLLfrJuLin^ u nil die rlĽiiíTtai am f Titanischen Thci.ricn iicr ReclUSSüiJolunic und i!cs Rech f-Tc;\ I i íihuí1 . Zčit&chrifl fur liHSlfuidhrltFi nffmtliches Rcíhl ufldVölkrirevht, 3{ ] 933) ř 529-Ů7 íl t 557 8-Kdhn.Lci, lupr/i n 3, 1Í. Jl, HcclHle-L. iupra a RS, V). ]_3g The Evolution of a Mood Since Frank's proposals wctľ as divorced from the opinions of most realists as they were from the tradition of Langdell, it was peibaps typical also (hat, during the 1930s, the lawyer icliool blucprin) should generally have fallen on fallow giound. Apart fmni the occasional, vague aside to the effect that the introduction of snippets of'the humanities* into the clinical curriculum might enable law students to identify with the feelings and grievances of their clients,3-1*1 Frank's suggestions icemed almost entirely to ncgieel that which most realists cherished above all; namely, the teaching of and research into läv/ as a social science. Hardly surprising was it that Llewellyn declared, in 1935, thjit 'I do nut believe, as Frank s^eems to, in the substitution of practice or clinic for theoretical instruction.'"1 For legal realists to take the lawyer school route would have involved massive sacrifice?!, given especially the fundamental changes in cunicuiar content and structure, in personnel, and the vast expenditure of energy and resources tliat the implementation of the clinical model would have demanded. It was not until the 196Ü& that the clinical model—and even then, not Frank's model—began to flourish in tbc American law schools.352 In the early 1930s, when Frank held a post as a research associate at Yale, the faculty had 'welcomed him warmly and his ideas with reservation^.35^ The occasional vocationally oriented course had been added to the curriculum; but by and large clinical education failed to lake root. Frank seemed genuinely frustrated by this i act, In -in address to the Yale Law School in 11)4!, he cliided his etstwhile realist colleagues for their quiescence: 'You folks here at New Haven take a programme for having law students act like lawyers—and you talk about it. Gosh, it you're going to spank—or woo— our Lady of the Law, go and do it. Don't become mere Yodellers—Or, for that matter. Godclleis,'35,1 The pun is not without significance, Fred Rodell spoilt much of his academic energy vilifying the Harvard Law School and insisting on the intellectual superiority of Yale355—complaining about the ills of modern legal education* in other words, rather than trying to remedy thtrn. It was precisely this words-over-action wQrid-view of. which Frank became disenamoured. And yet, ironically, Prank hardly hesitated to join 3™ See Frank, supra n -543, 33-1(1, 4ft-7. 1=1 KarJN. Llcwetlyn,'Un Whdl i& Wri|ľii;WÍIh ^j-Cü!lcri l^gül EdUíalLuEl', CVumtr^ t-J?ei\, 35 ('933}. GÜI-TÜ at 675. For funeral critical íHscukSíůíi of Fsarňí'& clinical l3Ví fcKuůJ činidel, see Giiirge K. Gardner, 'VJh,y Not a Clinical Lawyer-School?—Some Reflection^'. U. ŕVMrĽyívdJiw !- 1^,82(1934), "785-804, LťonT. David, The Clinic! Lawyer Srtiooh The Cliniť. U Penttsylvuma L. ftev.,|J3 (W), 1-7-2-Wí Sleveni, supra n. AS, 157, 215-lb. "3 Kaiman, supra n. 3, 172. ^ Jerome Fliinlc, 'YuJellcií and Rodellcrs', talk before ItlC Judgŕ's GavelT Yale LdW School, 15 February l>il, in Jeiomc N. Fiank Papers, "Vale University, Sterling. Memorial Ubrary, MiiniiscripTi and Archives Division, box 1(W, folder fi2Ä al 16. ,J,! S!ľc Dujbury,'In Hit rľu iiíghl of Legal Realism'. .warn n- 3. 3S5-90. The Evolution of a Mood 139 in the same game, 'Where the Langdellian atmosphere is thickest,' he wrote in 1933, 'teaching is weakest; where that atmosphere is thinnest, teaching is strongest.p:LSfi Almost fifteen years later, he remained steadiest to his belief 'that, as a whole, Yale Law School . . . comes closer to grips with lawyers' realities than T-Iarvard'.^7 Very simply, Frank ivas a Harvard-bailer just as was RodelL Indeed, Harvard-bait i ng—or certainty disenchantment with the academic and professional prestige which the Harvard Law School enjoyed—was at the cisre of a good deal of realist pedagogic critique- Viewed in rather crude terms, realism was very much an Ivy League law school phenomenon, a controversy liclwccn Harvard on the one hand, and Columbia and Yale on the other. When, in 1935, Karl JJcwcUyn offeied his reflections on the state of American legEiI education, he prefaced his comments with the warning that he was concerned only wirb ' "legal education'* as practised at Columbia, Harvard, and Yale'.35" While, furthermore, neither Llewellyn nur any other so-called realist was willing to indulge Harvard-phobia as shamelessly as did Rodell, there was a widespread recognition of the problem which the latter liked to dramatize. Edmund M. Morgan, for example, a Harvard Law School graduate and professor there from 1925 onwards, professed no sympathy at all for Rodelľs anti-Harvard histrumiesi33*' yet he was prepared privately lo acknowledge that the School faced something of a problem during the 1930s in so far as it was 'regarded as entirely too much satisfied with itself, and as having a supercilious* if not a hostile, attitude towards experiments in legal education and new methods of attack upon Jegat problems which originale elsewhere1,3ŮU Naturally, during the the 1930s, there were those jn Cambiidge—not least Felix Frankfurter—who insisted that allegations of Harvardian academic aloofness and condescension were unfair and u n found ed.""1' Yet ™_ Frank, supra n. 345, S9S. Ji' trank, supra a. 342. 1342. '^ Llewellyn, supra n. 351, &52. |n [lie 1920S, Harvard, Yale, Columbia and possible a Jidll-iJiizcn oilier law schools were distiiicl m ü> far a\ they conceived themselves in Ik jiBÉiíinal insiliutioiis, mthuul dny npcciaL «bligation to prepare students lu pap* the bar examinations of any particular siate. OtHer schools, lu contrast, were lather more concerned WiLh preparing studení; for provincial le^al practice. See Erucc A Ackcrjllin, 'Law and the Modem Mind by Jerome Trank', Daedalus, 1 conceive of ľegal education in non-LangdelHan terms. For many legal realists, this meant looking to Ehe mulhods of ihe social sciences for an alternative to Harvard-style formalism. The strategy of others was to play down the Langdellian tradition while venerating t lie achievements of pro to-real ists such as—indeed, especially—Holmes. Some adopted both of these strategics. Some also looked to their past teachers for inspiration. For example, at Yale, Hohľcld and the great contracts scholar, Arthur L. Corbin. were elevated by some to a quasi-Langdeilian status, the latter in particular being treated as something of a realist eminence grtse. This was primarily because of Corbin's redoubtable influence as a teacher— Llewellyn, for instance, regarded him as a father-tigure3ra—though it was also because of his penchant for making realist-style pronouncements on Ihe nature of legal evolution, on judicial creativity, and on the importance of facts as well as rules in the decision-making process.""3 These, after all, were precisely the themes to which Corbin's realist successors resorted in developing their second anti-Langdellian strategy; namely, the critique of flare deans as a foundational pedagogic principle. The classic illustration of the realist critique of stare decisis is commonly considered to he Herman Oliphant's presidential address to ihe Association of American Law Schools in 10-27. In truth, Oliphant was markedly less outspoken on the matter oF store decisis than commentators have tended to assume. Indeed, rather than reject the doctrine, he lamented its erosion. * Stare decisis1, he argued, 'has been sapped of much of the spirit of va See Hull, supra n. 49. 1327. iiJ OnCorbin'i f lidliit predilections rEEe Kaiman, SUpni n. 3,W-W\'l\\'\i\\<í%,utpran.T2. 27-3-1; and E. Donald KlUotL, "Tlie Evolutionary Tradili.in in JuiispmdtnĽĽ'» CnhimbiQ L. Rev., 85 {19ÍĽS), ^8-94 at 55-9. The Evolution of a Mood 14í the common law/3ŕ4 owing lo tbc ťa et that Laiigdelliaiiisni piecipiiated a '■''general retreat in legal thinking towards supermeneraliied and outworn abstract ions'."1''"'' For all its simplicity, llie argument was an ingenious one, Langdellian legal science, so received wisdom had it, was premissed upon an intense respect for stare decisis. Yet here was Oliphanl, suggesting that -,ri Liingdcllianism did not nurture but rather Suffocated the doctrine. How -< could thisbesoV Oliphant's answer was that Langdellian formalists tended " to conceive of store decisis in an inordinately narrow fashion, that is, as the - following., of principles—stare dktis—rather than as the following of ■ -.ľ decisions. Langdellian legal science, accordingly, required the student only ". to seek (he general 'doctrine' or 'principle* of a case without any ^ consideration of the peculiar facts upon which the decision itself was "- founded. In sacrilicing particularism in the pursuit of generalized abstrac-. ", t ions j Langdellian ism had mistaken stare dictis for stan' decisis. '[Tjhere n.-, hat1, Oliphant summarized, 'been such a shift in our work on cases from : ' parlicularity to generality of treatment anil sneh a shift of life from the giooves of our present long-standing abstractions, that our scholarship " becomes loose and unreal. . . . Our categories of thought have become ,'v. unreal by life having left them behind and no alert sense of actuality ehecks > >our revenes in theory.'"IÍ,ÉI The fundamental (ask facing legal realists, he ;. concluded, is one of securing a return to stare decisis proper: 'Because our law students are to be the scholars, advocates, counselors, and judges of .' tomorrow, (heir training is the area of supreme stiategic importance in this ;■" whole situation. Thai is our opportunity and responsibility. Regaining the V- values losí (o judicial government by the retreat from stan drcisii anil -\ .making law more a science of realities and less a theology of doctrines . .'.require a radical reorganization of legal education.1^'' r\, .While Oliphant took the view that the formalist conception of stare ,1 "decisis was not the genuine article, other realists were willing to accept "-C Laugdellianism at face value and criticize it for its slavish adherence to •:. 'precedent. 'A decision of a case is no more law than the light from last ,. night's lamp is electricity,' wrote Leon Gieen^ The general tenor of the •-'/"realist argument was that, in so far as precedents existed, conflict could ; - invariably be found among them, and it was precisely thai eonflicl Which allowed—indeed, required—judges to make Im.m The fundamental ' failure of the Langdellian reliance on stare decisis rested in the un-., ' questioned assumption that precedents bred legal certainty In truth, hO the ^. realist argument went, precedents lend to breed uncertainty, II was the recognition of this laci which inspired the third realist M OliphiLEU, uipru il. 72. 1ŮI}. -v''' Ttml 75. ™ Ibid. 7ft ''•' Jlijj ]5tf. "'''' f.Ťrern, supia n 'l-.S, p£. 1. lül.i. '■" Set- gĽTicriŕllv KiilmacL, Muirv \<- Ť. 2\—2 142 I'he Evolution of a Mood pedagogic sírategy: namely, the critique of the case method. At the beginning of the 1950s, Tliurman Arnold wrote of the case method that r[n]o more timc-wifstinj; system olMudying law lias ever been devised. . . . Yet a blind faith in lhe case-by-casc system still persists in the great majority or American law schools/3™ Much the same point had been made by LJewellyn in the 1930s when he denounced the case method as a 'pscudo-Socratic monologue'."171 Yet, as Arnold pointed ouE, the case method did indeed survive. Why should this have been so? Legal realism itself seems largely to have been responsible tor [be longevity of the case method; for, the comment* of Arnold and Llewellyn aside, it is possible Lo discern in the literature of realism a marked reluelauce to abandon case mel hud leaching. This is hardly surprising. The qualities of the ease method as an efficient and engaging teaching style were appreciated by most American academic lawyers by the early decades of this century. And even realists recognized a good thing when they saw one—even, indeed, when that good thing had Langdellian pedigree. While, moreover, no legal realist would have wished to use the case method -&i Laiigdell and his successors had used it, they saw nevertheless that it provided it superb means of encouraging a broadly sceptic»I iipproaeh to the study of law. Thus iL was that realists such as Mas Radin and Herman OliphanE, [hough opposed to Langdellian legal science, considered the case method to be a perfect vehicle for demonstialing the shortcomings of that so-called science/74 The ease method could be employed to demonstrate ťo studenti that the piinciples to be found in cases sometimes conflict, that legal doctrine often conceals uncertainties and contradictions, and that judges frequently rely on instinct rather than on precedent. Legal realism, then, entailed the reoiientixig rather than the jettisoning of lhe case method. A similar, if slightly more ruthless strategy was adopted with regard to the traditional case-book. Brian Simpson has suggested that realism contributed significantly to the demise of the treatise-writing tradition in the United Stales.515 Possibly it did, Wesley SturgciTs 'severely analytical*-1™ article, 'Legal Theory and Real Propeity 370 Thuruiiiu Arnold, Fair Fights aid Foul A Disheriting Lawyer's Life (New York Harc.HLrt, Dtbcm Sz Wm-fd, 19S1), 263. ,T] Llcwtllyn, supra n. ,151, ň77, alw ÓS3, 666. !" Set Sleven, supnt a. 45, 122-3, ÍJ:| Sec Jcrold S Auerbach, Unequal Justice: Lawyer* and Svtial Cíwn$e H< Modern America (New Yoik: Oxford Uniwrnly Press, 1976), 7S. >'* See Max Radiu/Tlie Education of a I tmyisť, California L. Rev,, 15 (1437). r7n-91; Oliptiaut, supra n. 72, 161. ^ A W. B. Simpson, "Hic Risrc and lľall at Hie Legal Treatise: Legal Prinujiles and (lie Vormsof lJigal Literaturu'. U. Chicago L. i!ev., IB 0^1), 632-79 at 677-2. ,lň urinitCjjImorc'ForWesltyStiirgE-vOH tlieTeacluLigandSiuciyorLaw1, Yale L J.,12 (I9tó), G4ň-S4 aL 651 The Evolution of a Mood 143 Mortgages1, is an obvious if unique illustration of realist hostility towards the genre of conventional Treatise-writing. Written in collaboration with a third-year student, Samuel O. Clark, Sturges*s article is an examination of how 'an American law student'377 might be expected to eonceive of mortgages, in both law and equity, Erom reading the classic treatises on the subjeel. By way of a series ol rhetorical questions, Stiirges demonstrates that any student who cared io examine critically the legal language of the treatises would discover that, certainly as regards mortgages, the relationship between law and equity is defined by inconsistency, uncertainty and conflict. rllie legal treatises, he insisted, glossed over doctrinal incoherence in the 'fruitless quest'3™ to depict law as :i well-nigh flawless body of logically interlocking concepts. Similar remarks were made by Hessel Ynterna with regard to the 'hornbook method1 of studying the conflict of laws. According to Yn tenia, both Joseph Bcalc and Herbert Goodrich—the prime advocates of this method—used it to promote a brand of 'juristic theology' which confined ľegal study to 'the squirrel-cage of coneeptualism', without any concern whatsoever for 'the realities of judicial administration'.37'' Yet the major contribution of realism to the development ol" legal writing rested not in the occasional outburst against lhe legal treatise or the hornbook, but in the more general rejection of the LangdeHian-style case-book in favour of a new type of legal text, the 'cases and materials' test. In one sense, the emergence of this new style of text may be regarded as an academic response to the initiatives of lhe National Reporter system. An ever-burgeoning body of case materia] quickly rendered impossible the concept of a 'pure' case-book offering a complete, systematically ordered body of decisions.330 in a broader sense, however, the evolution of the cases and material text was part and parcel of the lealist disappointment with Langdellian educational goals. Originating at Columbia in the early 192ÜS,-"51 lhe new ease-books, or rather their authors, tended to utilize a variety of 'materials — statutes, doctrinal commentary, the methods of the social sciences, among other things—in an endeavour to offer to students an idea of how legal doctrines function in a social context. Sometimes, furthermore, these new texts would be structured around novel doctrinal, "(ten comparalivist-oricnEed categories: so that, lor example, whereas the old. Langdellran-style case-book would offer A Selection of Cases on the Law of Contracts, the new-styie text might be comprised of Cases and '" Slujgta rfjid Cliirl:, supra n. 74, 7UE. "e ľliid. 7tW. "» Yfllema, Ttm ITornbnofc Mdiioď, supra n. 73, -If!!, ini) See Albert Ehrcnzwcis, "Tlie American Casebook! "Casts and Miitcnals" ' Gcorve-toiwr L L, 52 Q: Sec Sicvcns, supra n. 34S. 4&5-1- Woortard* supra n. 2fit. 7:13-, and Alticn J. H^rnn, Legal HdtícatÍO/i i/i lhe United Stales: A Report Prepared fnr the Survey of the Lťgal Průjťmůn (San Francisco: Bancmtt-Whllncy, 1953), 6Ü ,ÍJ Kar] N. Llewellyn, CllS&i and Material* an the l^w of Sales (Cilicatyl: Ca 11 ugiian. iQ-iO). ip) William Twining, 'Twu Wnrb; nf KarE L[eweHy[i\ Mod. L. (lev., 3(J (19<>7), 514—30i Mnti. U fiw., 31 (19Ŕ8), laS-Sl pi. 1,517 3Rli Sec Twining, supra nr 12, 139- naů Zippiirah Ratshaw Wiseman, 'The Limits (if Vision: Xarl Llewellyn and (he MerJiani KliIcs',/fariwif L. Třei".. 10l>(iyS7), ^65-545 at 47ú. Moie generally, cfL Eugene F. Mconoy. 'Old KanirdCt Principles anil Karl's New Kode: An Ilüitr Ollllie Jurihpuidcncf of Oil ŕ New Commercial Law', VsilanOva L itev., 11 (IQta), 21>-253- *" RhrcnzweJJ*t Supra n. 3&ft, 23S. *" By Llewellyn';; csfiruaíionh CuirS and Material? on the Law of i'rifti wUS 33% ťascv, 36% diíKibiř ■?£% annotations and 3% statutes. See. Kaiman, supra n. 3, 79 The Evolution of a Mood 145 on price,*3!N Unlike earlier writers on (be subject, furthermore, Llewellyn emphasized the contractual rather than Ehe proprietary dimension of the law of sales, on tlie basis thai 'the contract for I'nmre delivery ... is far more- important to the lawyer in practice1 and more typical oí business transactions in a credit economy'.™ Students, he insisted, must eschew generalized legal concepts and categories in favour ol an essendaíly pragmatic, particularistic approach to legal doctrine. A classic piece of realist revisionism, and 'a major step forward in the development of teaching tools in American law schools','^' Llewellyn's case-book refuted the Langdellran conception ol doctrine every bit as vigorously as Langdellians themselves had promoted itr Yet while Llewellyn's case-book epitomized a particular realist achievement-—the gradual discrediting of the Langdellian casebook tradition—it also, in another sense, exemplified failure. In the Preface to his work, Llewellyn professed his intention to utili?e the findings of experimental logic, social psychology, anthropology and sociology; yet. for the most part, his presentation of the law of sales unfolds without any resort whatsoever to social scientific methods or materials. Generally, thosĽ legal realists who produced case-books tended neither to make effective use ol the social sciences nor to raise matters of social policy over which such sciences could have cast light.'" Indeed, for ah that it became established in the mainstream of American university law teaching, the cases and materiálu text stands as a testament to the failure of legal realists to develop a social scientific approach to the study of law beyond the planning stage. Critique of Langdellian assumptions was easy compared with implementing a programme ol legal education; and while realists tended to excel at the larmer task, they fared comparably poorly at the latter. As stated earlier, ideas proliferated; but little emphasis was placed on following through. Quotations from the letters of two Yale law students of the early 1940s illustrate the point. On the one hand, Irving Clark viewed Yale of Jhe J^3(ls with bright-eyed awe. Under Hutchins's deariship, he claimed, 'Yale shot to the front rank-—precisely because it acquired a Jacultv equipped as no other in the country to present every philosophy of th£ Jaw, to reiste the law to all the olhpr social sciences; a faculty, in short, whose catalytic1 influence has leavened the thought ol" lawyers cveiywhere from Wafl Street to 'Washington/-'93 Grant Gil more, on the other hand, '™ llcwellyn, supra n- 3f!4, 1. 3m Twining, supra n 535, i)t. T, SM Wl ibid. pt. I, 516. 392 Sie Kaiman, supra n. J, aS-94. 101 living Clark, Jr. to Clliirles Sü>moi]i\ 26 Juty ľM3, lil Cli.Lrle* 5eyttii.nr Papeii. Y^lc University, Slerfing Memorial Library, Mariiiseriprs utlá Archive: Divinum, hc-x 94 folder 80? 14ó The Evolution vf'a Mood reflecting on his own education in the ]ü4Qs, tu o k a les* sanguine view of Yale's achievement?;: What has most puzzled nie over (lie years in thinking about the instruction we received in the early 194Ü& is now extremely fnnvcnlioiial ov traditional it was, . -Ol course the prime movers and shakers (Hutchins, Clark, Douglas, Arnold) had lOTigiineo left New Uavcn. However, Underbill Moore, Walton Hamilton, "Wesley StiLi&ťi, and Harry Shulrnaii (not 10 mention Arthur Corbin) were üiill on [lie íiiĽLilty—and indeed I took courses with eaili of thum. Without exception, die Ľuuists tlioy taught wert cutii ely standard txeicises in case law [or, Occasionally, statutory) inialysi;., which would not I]ave been out of place at Harvard. Hot a word from any oT them about hittoiy, jurisnnidcnce, the scientific approach, empirical rcsĽarch—except that Corbin gave a preliminfiry lecture in thy fjrst-ycor Contracts course on Rohfeldiaii analysis (after which no more was hearü of Holiteld). . . , If there is. anything in Ihe Grout "ľeach^r idea, these men were (jreat Teachers— certainly the greatest I ever sludied under. Bui, by 1940, despite their own deep involvement in the ferment of l.egal Eealísm, they had nil evidently decided to exdurte f rem (heir teaching any referente to the ideas which had concerned, indeed obsessed them, during i]ie 1920s and 1930s ™ The intellectual Jermentol legal realism, as Karl Llewellyn called it, failed to make mndt of an impact tin the hulk of the American law" schools.13^ Oven at the schools where it hyd come to piominetice, realism was more an endeavour In relate legal sLudy to legal practice than to make use of the social sciences. The appeal to Lhe social sciences., it turned out. had been but an appeal to 'otherness'. Lawyers had become frustrated with, even jeakuis of, other lawyers. Harvard setmed to be holding all the be&l eards, and the social sciences offered law professors—mainly, though by no means exclusively, at other Ivy League universities—a good opportunity lor bluff-calling. Here, it was claimed, was a collection of disciplines which would at once expose Langdellianisin as antediluvian and UijecL new life into tbc study of law. And who, in the 1920s and early 1930s, was to say that, these disciplines could not deliver the goods? Only as the 1930s progressed did it become increasingly clear that most legal realists were either unable or unwilling to use social scientific methods to facilitate a genuinely non-Langdcllian approach to the teaching of lawr Rather than becoming the norm, the interdisciplinary approach developed, or rather disinlegiated, into an ad hoc affair,-190 to be adopted by parLiculai academics rather than throughout the law school system. Legal realism J" CirnnE G[|mcrc in John Henry Schlegel, ltf Jjhc ľJfcfl (leitet huu-phed lu author by PniľciSorJ- R Schlegel). Ms Stevens, si/pru w. 'Ví, 172. ,v SccDdwson, -ui-ian. J2ft. JUS; 'Mnnj of us co ncludctl Lint what we needed and vhunLed in knO* lnim uthct flisciuhtics, we would havclo leasn all by (juiSfelvcs, with occahioiia! help froni friends in ullier special Lies aEier we had learned cuaupli to isst ihcm questions/ The Evolution of a Mood 147 certainly inspired the future flourishing of interdisciplinary legal research and education. Yet inspiration was basically all that it achieved. To the four auti-Langilellian, leahst pedagogic initiatives outlined above» there may be added a fifth strategy: namely, the critique of the R^Lu Lenient movement, While this critique was not straightforwardly a rejection of the methods of the Langdellian law school, it was very much a parL of the realist assault on legal formalism. r^Ot that every realist viewed the Restatement project with disdain, Herman Qliphant, for example, apparently without irony, lauded the project as 'truly impressive'.3''7 But generally, legal realists considered the Restatements to represent 'the htgh-watei mark of conceptual jurisprudence'.3^ The fundamental ambition of the resuiteis was not to codify Lhe common law, but, in true Langdellian Jashion, to reduce its principles to it simpler and more systematic form. This entailed stiipping the major common law fields—contracts, trusts, properly, torts, agency, business corporations, conflict of laws—of their doctrinal complexity and leaving only the bare bones of black-letter rules and principles.-1''-' The first Restatement, of contracts, was completed in 1932; and the task of restating—and re-res Ealing—continues to this day. The longevity of the project is something "f a miraelc, not leasl because, during its formative years, il was subjected to sustained ^nd fairly ferocious critical onslaught. Indeed, Ihe Restatements inspired some of the most carefully conceived realist doctrinal critique of the 1930s *,ů They also inspired an equal amount of unashamedly negative polemic. 'The undertaking to restate Ehe rales and principles developed by Ehe English and American courts finds in the field of torts a mos t hopeless task,' wrote Leon Green in 192S.401 Foi Charles Clark, the Restatement of the Law of Contracts possessed 'the; rigidity of a code . . . 177 OLLphanl, hu/jrnl n. 72.71. ™H Lattiencc M- Tried m an, A History n f American T^uv (2nd ed,i New York: Suuon &■ Schuster, 19S5), &7 flIÍSJ, 5SZ-ůy7; Hmesl G. Luiciizcn mni PiiyTn,^nd J. Hcilmdii, The Ri^lüteiiicnl of Hie Conlljcl uf L^w;', U FwnsylYQ'ii/! L. J?ŕľ.r 83(1935), 555-#>; Hesse] [-;. VnLeina,' ľricReslatementaf tbiLawor ConllicL oí Lawi', CaJnmftia L. fíei\, 3fi (19Jú), lfi3-22íi William R. Vance, The Rťstatemcnt nf tlie Lav, cií PlOpcity', U Pewaylveaiut L. fiev , Pů (ty37), 173-R3. m Gustat supra n.255, pL. 1, 101-1. 14ÍÍ The Evolution of a Mood without the opportunity for reform and advance which a mile affords1.'102 Even William Reynolds Vance, one of the most conservative legal scholars at Yale during Lhe 1930s, was prepared lo denounce the Restatement of the Law of Property as a series of 'solemn declarations , , . so obvious that they arc rather ludicrous- - - - The judge who would base hi* decision of any question of law upon [hose black letter declarations would be worse than lazy- he would he incredibly stupid 'ifyi Possibly the most outspoken critic of the Restatement project was Edward Robinson. £[T]he American Law Institute', he observed, 'has thought thai it can help simple-minded lawyers by giving an artificial and arbitrary picture of the principles in terms of which human disputes are supposed to be settled.,a<>1 However, 'the result thus far secured is hideously difficult. There is some reason to believe that it would be easier and more satisfactory lo learn law by random sampling of the cases with all their contradictions and complexities than by reading the abstract propositions in the volumes issued bv the Institute."105 Indeed, he concluded, '[wjhen one considers these "restatements" of the common law and how they are being formulated, one remembers how the expert theologians got together in the Councilor iSficaea and decided by a vote the nature of the Trinity.t40fi One collaborator in the Rest «temeni project, Dean Herbert Goodrich of the University of Pennsylvania Law School, took offence al Robinson's remarks, condemning them as 'fighting words, clearly passing the limit of fair comment' and 'bitterly resentjed]' by 'all of us who have put in a share of the sweat and tears which have gone into the effort thus far' A;p05ÍI[on Of ihľä půlili i5 lo be found in runic MeCailley Laridis, 'Statutes ami the Suarca. u!" 1-iiw', in R. Pound {ed.}, Harvard Legal r.Tsaju Written in Honor of and Presented jj> iof Law', Dickinson L. iff-, 44 (ľMO), 110-lril at lSH-y- rtnd alsu SlcwdrE, Supra n. 41*J, ](i73-9 F'ir Ehe .irißinS of (he Amencajl thsffiiSt of dflcsaJed anthorily, icľ Alexiinder llaiiüllori, ' F edcraliil Papers, l.XXVIIE: A Viswui urn Constitution, of the Judicial lícparEmeni in Rcldticil Eo the Tenure Of (.vood Hchavionr" in James Madison, Alexander Hamilton and John lay. The Ftderilhst Fapc-'S (ed. I. KJiimmek, WarrnnnďvWíirSh: Penguin, 1987; Urlg. ITHfbl. 17&S), •136-4? at 43S f^cvciv acl ot a dcÉeijaled authority, contrary [nthe JcnoruFlhe ciinimissioil llildcr which i I lz exerriicd, rn mid'). "■' See cases Cited supra n, 23%, and alii Curric supra tí 194, 517-73, ais Sec Rosľúc Pound, Tlie Growfli ot Admin isEraEivc Justice', Wisconsin L. HfĽ.. 1 (l'lř.1), 323-3.9 aE 330-3. "" tícc Rnsí-oc Hound, WjtlicrF.Dddd, James R. (jarfJelrJ, O, Ei. .VfcOuire jnd Robe]t F. McGuire, 'Re|>ort of the Special Committee im Adenin islfativt Law', Aminen» Jlar Asmc Reports, fü (1938), 331-dJi at 342-04; Roscoe Found, -Lhc Recrudescence of Absolutism', Sewanee Review, 47 11939). třl-2fi M 26; ■"Individualization ot luiiicc', Fordlurm L Rev., 1 (f93S). 153-66 at ltu-5. 4311 See TLu,LOe Pound, 'The Future of lav.', Yah L.J., 47 (1937), 1-13 at ľ?;. 'Modern Administrative ľ .aw' , Report.' /•{ Shi- Virginia Slate fiti'Association, 51 119391, 372 -&S:. Soaat Control Ttuoiigh Law {New Haven, Conn.: Yale Urliveisity Press. 1942), 27 Cf also Fnedrich A. von Hayek, The ftoart to Serftlmn (I^mdL.n: Roulledge & Kcgan Paul, 1944). 5n-o5- "" See David Wigrinr, Itotcoe Pound- Philosopher of Law {Westpnrt, Conn.: GrteEtWOOd Ptess, 1974). 271 i,! Pur di^ciipiim nf Roosevelt's court-packing plan and its gene*.!:;, we William £-LcuLliterbbuiä, Franklin i>- KoospveIs and she New Deal, 1'>Í2-1940 {Nc- York: ITdr|j*T & línw, l%3),233-£- and Keniilt L. Hall, Will mm \3. Wicfuk and Paul Flilkelilian, American I egal Hi'Sr/iy Covet ami Materials (New York: Otfoid l.lnlvr.r'ity Pre'h, 19ÍH), 4P3-6 The Evolution of o Mood 153 Found\ intellectual development—from the supremely confident and iconoclastic critic of mechanical jurisprudence to the rather reactionary opponent of the New Deal administrative agencies—highlights Ihe manner cti development of early twentieth-century American jurisprudence itself. By the late 1530s, Pound was faced with a totally different jurisprudential ball-game from that which he had first confronted three decades curlier,1-*3 With Ehe arrival of statutolif[cation and Lhc regulatory state had come the danger—01 the possibility, depending on how one viewed it—of widespread political manipulation of law. It was precisely such manipulation to which Pound was objecting. Despite tbc faulLs of the common law system aü enshrined in the Langdellian tradition, he seemed to be arguing, it had at least eschewed the tendency towards overt poliliciř.aliou which was so much a feature of the modern regulatory apparatus, Statutorification had changed the entire complexion of American taw. With the coming of the. New Deal, lawyers trained in common law techniques were suddenly expected to speak a new and diFferent language, the language of the administrative slate.43"1 t.egal realism, Pound insisted, was instrumental in creating that language: 'realist doctrine . . . may be seen in action in administrative absolutism1.433 This assumption—that realist jurisprudence was New Deal jurisprudence—is something of a commonplaec. Yet it needs to be questioned very seriously. Certainly some legal realists became active participants in Roosevelt's New Deal programmes. But quite what bearing realist legal 'thought had on the New Deal administration—or vice versa—is diFlicuJt to ascertain. Tn 1934, Jerome Fiank, having recently been appointed by Roosevelt as General Counsel for the Agricultural Adjustment Administration, argued that realist jurisprudence and New Deal politics share a basic faith in experimental ism: both treat legal institutions 'as human 'Contrivances to he judgerf by their everyday human consequences*,41* Indeed that, he suggested, is why many legal realists were eager for a piece • of the political action: they were 'stimulated by the opportunity to help contrive new governmental agencies to be used experimentally its means fo] achieving better results in agriculture, industry, lahoui conditioiisT taxation, corporate reorganization, municipal finance, unemployment >elief, and a multitude of other subjects'.417 While certain legal realists did "' As Pound himself lecufijiLzcd. Sse Rmcoe Pminri, "ľhc Ideal anu" (lie AllU;lI in Law— Furry Years After', Geurgc Wavhmgirm I.. Rev., 1 (1933), 43E-47 u! 443. iJ* See Brura A Ackcrrnan, HecoaSlrtJCling American i.nw (Cambriilgc. Mass Harvard UiäiViriüy Prc-^;, llM}, ů-1!; a»d et Leim CiFccn, jMeiM Ihr 1 egal Vrofessjuu Uudeiyu » 3|iirEľuil liebiiUY?', Indiana /../. Hi (lv4fl), 15-30 a! ^3-1. Itosaie Pi>und, Ctiniemparary Juristic Thcorv (darcinum, CA: Ward Ritchie 194411 20. "v' Frank, mpra n. m, 121 M- ;,í\/\ ci. riobfrisoil, Suyru n 21, 239. 4!: Prunk, supra n. 13, 12414. 154 The Evolution of a Mood indeed rise lo the challenge of Ehe New Deal, this is hardly proof thai realist jurispinderice was wrapped up in Iioosc^eIti;in politics. The case olThnrmaii Arnold is illustrative. In 1937, Arnold ridiculed the essentially symbolic, toothless nature of American antitrust regulation. "Hie antitrust laws,' lie asserted, 'being a pleaching device, naturally performed only the functions of pre;tchiniT.,Jlia In the following year, Roosevelt appointed Arnold to succeed Robert Jackson as head of the Antitrust Division oF the Justice Department. Suddenly, Arnold was vested with the responsibility of administering the very laws whith he had debunked only a year earlier. How could he he expected to do this with conviction? Arnold's answer to those who viewed with scepticism his ability to enfoice the antitrust laws was simple: as a writer, he h;id üttcmpled merely to observe how these l;iw& were used—or rather, not used— throughout the Depression period; once in office, however, he regarded his iJisk to be one ol enforcing these laws and ensuring that říew Deal antitrust policy was implemented and administered efficiently.'1 Those who doubted the sincerity of his resolve were to be proved wrong. By the time he left the Justice Department m 1943 r he had expanded significantly both the budget and the staff of his Division; fiscal appropriations had almost quadrupled during his Five years o( office; and he had filed, and won, more antitrust cases than the Justice Department had initialed in its entire previous history.'1'10 More importantly, Arnold revived the idea that antitrust laws could form a basis for public policy. Particularly significant was the emphasis which he placed on the symbolic function of the Sherman Antitrust Act ol lH90.'l1iis Act, he iirsisted. represents the American ideal of free competition; and while earlier interpretation s had concealed and encouraged business consolidation—owing primarily to the fact that the terminology of the Act was so vague as to permit the concentration of corporate wealth in the absence ol vigorous enforcement policies—it cuuld, if interpreted differently, be applied more efficiently as a means of protecting consumers1 interests. Basically, what mattered was the manner in which the Act was conceived and promoted as a political symbol. Arnold's tactic was to promote it as 'a symbol of our traditional ideals*— that is, not only as a symbol oF Iree enterprise, but as a symbol of democracy itself.1,11 4jH Arnold, iuffra a. 241, 211-12 * " See- Arnnld, supra n. 37U, 13&. ~:''u $cc genu ally Corwin D. Edwdrd1,. "111 mm in Arnnld Jiflri lIlcAufilruit LdtfV, Pahtirat Srwttw Quarterly, 5& (t943)r &Ü-SS "' Sirf Thurrmm Arnold, file Boitltintvfa vf Businas (New Ynrk: kfrynal & 1L ttllĽuck, 19411), ")2, Democracy Um! Fat- Enterprise (N.irmnn: University of OfciahúKia Fre1,1*, 1942), The Evolution of a Mnod 155 What is particularly interesting about Arnold's trust-busting activities is the manner in which he was willing to separate theory and practice. In his writings of the tnid-1930s, he had insisted that, to be effective, institutions must escape fnmi their ideals. Yet, n» head of the Antitrust. Division, his primary assertion was that business institutions could not be effective if they failed to promote the ideal of free competition as embodied in the Sherman Act. While, as a legal writer, Arnold had denounced the enshrining of tlic laissez-faire ideal in symbolic legislation, as a New Dealer, he was more than happy to embrace this ideal, legislation and all, if it served a desired political goal,4*2 Thumian Arnnld the legal realist was a rather different beast than Thurman Arnold the Neiv Dealer. "Hie point for emphasis is simple: while legal realists such as Arnold, Frank, Oliphant, Clark, William Q. Douglas and Felix Cohen may have flocked to Washington tu work under Roosevelt, they did not necessarily take their realist ideas with them. Certainly, at a very generalized level, realist jurisprudence and New Deal politics inlermeshed. This is hardly surprising. Whereas a basic tenet of realism was that the abstract concepts ol' legal formalism must he brought down from the clouds and shown for what they arc—that is, limited, pliable, often Hawed tools for dealing with £; disputes- and social problems—an equally basic requirement of the New Deal agencies (especially during the first New Deal programme, when administrative experimentation was considered a necessity) ivas a legal stal ľ trained to treat law as a tool for shaping social policy. This explained, Karl Llewellyn believed, why students educaled in the values of legal realism tended to make good New Deal lawyers.441 There has been a tendency, however, loo readily to assume that the New Deal lawyer put realism into political practice. In fact* as G. F.dward White lias remarked, '[graduates of law schools in the lu30s , , , did not necessarily join the New Deal because they had been imbued with realist messages, nor did lh<: existence of New Deal programmes necessarily provide a stimulus for the articulation of Realist jurisprudential theories.''1'1'' Apait from the institutionalist-rcalisl critique of Itiissez-faii-e, the tenor ol which re-emerged in a good measure of New Deal legislation, realist jurisprudence made a fairly limited impact on American politics in Lhc WSlh- & • 'Ifi- and ď. more generally Alan Ilrinklcy, 'The New Deal and lhc Idea of |he Jjtatc1, in Í). Fräser and (jr t}crttte(ctls.)>7lte-fiise* cítit Fall of ttu; New Dtrd Order, 1930-I9SO (ľuticcton, N3: Princeton UiuvcíSLty Press. 19S9), £5-121. 4,13 Sec generally Dmbury, 'Some Radicalism about Koal ism?' wpra n. 3, Jil-j; and aEso Duuglds Aycr, Til Quest ui Efficiency: The Ideolo^LCäl Journey oĚ Tliuniiíin Amuld in lhc Intcnw Periuď, Stanford Ĺ Rev., 23 (1071), 1049-86. "' Sec Llewellyn, supta n .Jil, (til. *" C. Edward While. 'Recapturing New Dep] Lawyers', Harvard L. 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The problems of modern admin ist ä alive govern men L never supplemented its original critical agenda.'13'' CONCLUSION There are, to this dav, lawyers here and Ihcre who claim to be 'legal realists'.'™ They are, however, a very rare breed. The common view is that leatism is something which modern Uiwyens outgrew once they had Hhsii! lila ted its primary messages/01 Gut what were those messages? The I'ael is that 'realism' was ;i complex array of messages, some of which seemed rather feeble tmee placed in an institutional context. Legal realists made a good deal of fuss about bringi n g social sciences to the law schools. Cut they did disappointingly Little with such sciences once they had got them Lbcre. Legal realists rallied against the Langdeliian pedagogic framewoik. But they Jailed to devise a convincing alternative framework of tlieJroivn. Hy sinning a harsh spotlight on the system of stare decisist legal realists cleared the way for the growth of legislation. Eut they proved themselves rather prudish once the 'orgy of statute making' was set in motion/1" Some legal realists were drawn to New Deal politics. But tiie overlap between jurisprudence and politics turned out to be largely adventitions- Such a catalogue of missed opportunities rather suggesLs that legal realists generally lost their nerve when faced with the implications of their own jurisprudential constructions.ůr3 Realism evolved us a broad critique of the formalist assumptions at the basis of late nineteenth and early twentieth-century private law doctrine and leaching. Beyond this critique, however, there remained little but a marked absenec of vision. Rather than emerge a1* the jurisprndenec of the New Deal, lealism was outstripped by political and legal developments, and when various realists left their faculties to head for Washington they did so nůL oul of a desire to put experimental jurisprudence into practice, but in search of promising career prospects. The development of administrative iaw as an academic subject, fur the r- fl>1' Brum: Aekcrruari argLLLS lhal Lii wa^ only hy a 'si m Liatiny laigc chunk1, iif Realit wisdom' thíLíthc Icfiül profession o( the 1930s 'managed to preserve so niueľi of its traditional common law distouise'. Acketniírii, mpm a. 434, !3. 460 Sül ü g. Jahn F.. Nttwak, 'Rc^llitccIí ng RcalkE JbEriipniclcncc: ľhc ťuliiiciil Hiht: nľ Burner Court Justices'« Suffolk U>úv. L. Rev., 17 (1033), 549-Ü2L!; 'Realism, Nílnllsm, and tňcSiipTOciieCouľťDolhcEiiiiwniislIuveNuiluibíibutRoLi^r, IVŕuAŕa™!, J.,22 (19S3), 24fi-ft7. 401 Scľ ü g. "Lwining, supra a 7, 381—3 ""^ Hie melnolior belongs tú íjifriiore, supra u. 64, 95. Sec Sch Lcjjel, 'Frum Ehe Ydäe Experience', lupra ti i, 4fiíl; 'The Singular Cara: 71), jS-fj7.