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Detecting Doctrines: The Case Method
and the Detective Story
Simon Stern*
[A]ssuming that good detective fiction must be good fiction in
general terms, we may . . . give our attention to those qualities . . .
which give to it its special character. . . . [T]he theologian, the
scholar and the lawyer have a common characteristic: they are all
men of a subtle type of mind. They find a pleasure in intricate
arguments, in dialectical contests, in which the matter to be proved
is usually of less consideration than the method of proving it. The
pleasure is yielded by the argument itself and tends to be
proportionate to the intricacy of the proof.
— R. Austin Freeman, The Art of the Detective Story1
When lawyers are not being villainized in popular culture, they are
often portrayed as having many of the same admirable traits as a shrewd
detective. If this characterization conforms to an image that some lawyers
embrace, it also speaks to a frequently rehearsed analogy in the literature
on legal education and reasoning. Legal forms of explanation, pedagogy,
and analysis invite comparison with detective stories for many reasons.
Some commentators focus on the shared sense of inevitability in the
whodunit and in the written opinion. On this view, the judicial habit of
slowly working up to a seemingly inexorable conclusion resembles the
detective story’s shrewd distribution of clues in such a way as to settle
guilt on a culprit whose status appears similarly inevitable in retrospect,
* Assistant Professor, University of Toronto Faculty of Law & Department of English. Ph.D., UCBerkeley;
J.D., Yale Law School. For comments on earlier drafts, thanks to Charles Barzun, Scott
Boorman, Gregg Crane, Bill Eskridge, Monika Fludernik, Robert Gordon, Janet Halley, Bruce Hay,
Charles Rzepka, Vanessa Ryan, and Elaine Scarry, and to the editors at the Yale Journal of Law & the
Humanities—Lawrence Kornreich, Kathleen Neace, and Allison Tait—and to audiences at the
University of Toronto Faculty of Law, the University of Freiburg, the University of Virginia Law
School, and the Humanities and Cognitive Theory and the Arts Seminar at Harvard. Thanks also to
Walton Green for inspiring this line of thought when he loaned me his grandfather’s copy of the
Randolph Mason stories.
1. R. Austin Freeman, The Art of the Detective Story, 95 NINETEENTH CENTURY & AFTER 713,
716 (1924).
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340 Yale Journal of Law & the Humanities [Vol. 23:339
as if this figure had always been the only eligible candidate.2
Other
commentators emphasize the pedagogical value of narrative, which can
make an explanation compelling and memorable in ways that a more
abstract and methodical account cannot. For these scholars, who focus on
the role of the detective mentality in the classroom, suspense and
vividness are features that law professors should borrow from mysteries.
In narratives that unfold by maintaining the audience’s suspense, each
new event or detail attracts further attention. The lesson emerges at the
end in a powerful crescendo that is memorable because the explanation
doubles as the narrative resolution.3
Likewise, narratives abounding in
vivid descriptions and psychologically plausible motives facilitate
engagement because they give human features to legal actors (who might
otherwise remain skeletal or abstract)4
and show how legal doctrines
dovetail—or clash—with real-world events.5
2. On inevitability in judgment-writing, see Erwin Chemerinsky, The Rhetoric of Constitutional
Law, 100 MICH. L. REV. 2008 (2002); and Robert A. Ferguson, The Judicial Opinion as Literary
Genre, 2 YALE J.L. & HUMAN. 201, 213-16 (1990). Peter Brooks comments on the shared drive for
inevitability in detective fiction and legal explanation in Inevitable Discovery—Law, Narrative,
Retrospectivity, 15 YALE J.L. & HUMAN. 71, 87 (2002). See also Rosanna Cavallaro, Solution to
Dissolution: Detective Fiction from Wilkie Collins to Gabriel Garcia Marquez, 15 TEX. J. WOMEN &
L. 1 (2005) (discussing narrative closure in detective fiction and its relation to legal culture); Richard
K. Sherwin, The Narrative Construction of Legal Reality, 18 VT. L. REV. 681, 688 (1994) (discussing
lawyers’ interest in “the sense of inevitability” in detective fiction).
3. A classic analysis of this structure appears in William F. Brewer & Edward H. Lichtenstein,
Stories Are to Entertain: A Structural-Affect Theory of Stories, 6 J. PRAGMATICS 473 (1982). David
Velleman offers an intriguing critique of this use of narrative structure and its use in the courtroom in
Narrative Explanation, 112 PHIL. REV. 1 (2003), as does David Luban, with respect to legal academic
arguments, in The Art of Honesty, 101 COLUM. L. REV. 1763, 1765-66 (2001). For other discussions
exploring the legal uses of this technique, see Kenneth D. Chestek, The Plot Thickens: The Appellate
Brief as Story, 14 J. LEGAL WRITING INST. 127, 132 (2008); Christine Alice Corcos, Legal Fictions:
Irony, Storytelling, Truth, and Justice in the Modern Courtroom Drama, U. ARK. LITTLE ROCK L.
REV. 503 (2003); and Philip N. Meyer, Retelling the Darkest Story: Mystery, Suspect and Detectives
in a Brief Written on Behalf of a Condemned Inmate 58 MERCER L. REV. 665, 696 (2007).
4. The call for narrative detail appears frequently in discussions of “legal storytelling.” Robert C.
Power makes the point by reference to detective fiction in “Just the Facts”: Detective Fiction in the
Law School Curriculum, in MURDER 101: ESSAYS ON THE TEACHING OF DETECTIVE FICTION 178,
178 (Edward J. Rielly ed., 2009). See also John R. Dorocak & S.E.C. Purvis, Using Fiction in
Courses: Why Not Admit It?, 16 LAW & LIT. 65, 77 (2004) (discussing the uses of narrative
vividness); Lawrence M. Friedman & Issachar Rozen-Zvi, Illegal Fictions: Mystery Novels and the
Popular Image of Crime, 48 UCLA L. REV. 1411 (2001) (discussing the uses of narrative vividness).
5. It has long been recognized that legal concepts are more likely to be remembered if they have
been inculcated through exposure to concrete disputes. In an early nineteenth-century book review of
a new volume of case reports, the reviewer observed that it is easy to forget the “nice distinctions and
subtle refinements in [the] elaborate volumes of digested jurisprudence,” that is, in digests that merely
summarize the doctrine, but
[n]ot so . . . with that [knowledge] acquired by reading interesting law reports. The facts in
these cases serve as bonds of association, by which the principles interwoven with them are
held together, and kept long and strongly fastened in the mind. . . . Thus it is that the student, so
far as he can read reported decisions intelligently, is sure of learning his law more accurately, as
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According to perhaps the most intellectually ambitious account,
however, the connection between legal analysis and detective fiction does
not depend on a shared sense of inevitability, or on an argument for dense
and compelling narrative detail, but instead turns on the logical
procedures of the detective story—its use of a structure that promotes
logical reasoning.6
This way of formulating the analogy speaks to forms
of legal reasoning both in written judgments and in the classroom, and
echoes the rationales offered by the advocates of the case method when it
was first being endorsed in the late nineteenth century—although those
scholars had little reason to acknowledge any kinship between their
innovations and a form of popular fiction that many would have seen as
degraded and lacking in intellectual rigor. A few turn-of-the-century
lawyers called attention to the analytical habits of Sherlock Holmes and
his colleagues, but more often the analogy came from the other side:
proponents of detective fiction were apt to insist on the lawyerly habits
inculcated by the genre, because these commentators sought to emphasize
the stories’ potential for cultivating the reader’s logical abilities. Those
efforts to elevate the genre were largely successful, with the result that
today the comparison is commonplace and is just as likely to come from
lawyers as from literary critics or logicians.7
The analogy between detection and legal thinking is intimately linked
to the case method and may be readily discerned in the justifications for
this form of pedagogy that were offered by its early sponsors. For that
reason, generic similarities between detective stories and legal writing are
more readily observed in legal judgments edited for casebooks than in the
typical judgment issued by a court. Yet even in the latter, certain features
borrowed from the structure of detective fiction have a surprising
persistence. For example, while judgments often abide by the principle of
well as more pleasantly, than he can in any other way.
James Madison Porter, REPORTS OF CASES ARGUED AND DETERMINED IN THE CIRCUIT COURT OF THE
UNITED STATES FOR THE SECOND CIRCUIT, 9 N. AM. REV. 167, 182 (1828) (book review).
6. Neil C. Sargent, Murder and Mayhem in Legal Method: or, the Strange Case of Sherlock
Holmes v. Sam Spade, in LAW, MYSTERY AND THE HUMANITIES 39 (Logan Atkinson & Diana Majury
eds., 2009); Brooks, supra note 2, at 87; W. Russel Gray, Supralegal Justice: Are Real Juries Acting
Like Fictional Detectives?, 21 J. AM. CULT. 1 (1998); Jeanne L. Schroeder, Abduction from the
Seraglio: Feminist Methodologies and the Logic of Imagination, 70 TEX. L.R. 109, 180-81 (1991).
7. In addition to the examples cited above, see, for example, SIEGFRIED KRACAUER, THE MASS
ORNAMENT: WEIMAR ESSAYS 15 (Thomas Y. Levin ed. & trans., 1995); MICHAEL E. TIGAR, NINE
PRINCIPLES OF LITIGATION AND LIFE 153-57 (2009); Kola Abimbola, Abductive Reasoning in Law:
Taxonomy and Inference to the Best Explanation, 23 CARDOZO L. REV. 1683, 1686-88 (2001);
Michael Scriven, Methods of Reasoning and Justification in Social Science and Law, 23 J. LEGAL
EDUC. 189, 195 (1970); and Douglas Walton & Fabrizio Macagno, Common Knowledge in Legal
Reasoning about Evidence, 3 INT’L COMMENTARY ON EVIDENCE 1, 18-21, 24-25 (2005).
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legal writing that demands a full outline of the argument in advance, it is
nonetheless common to see courts flout this principle, and to begin with a
short summary of the issues, waiting to announce the result until the
analysis is complete.8
Judges’ use of this approach, even if only in a
minority of cases, is a remarkable testament to the appeal of a narrative
structure that urges the reader to follow the logical pattern as it unfolds,
rather than presenting the result as a fait accompli at the beginning, with
the argument working its way towards an endpoint that has already been
spelled out. Even when judgments do not follow this pattern, casebook
editors often mold them into that form, promoting a particular view of
what it means to “think like a lawyer,” and of “what the practicing lawyer
has to do.”9
According to one of the most prominent studies on these
alternative narrative schemas, the difference between them is the
difference between a story that holds the reader’s suspense and a story
that, by revealing the conclusion immediately, is incapable of producing
any affective response.10
It might seem obvious that legal writing should
not strive for an affective response, at least in a decision’s overall
structure. However, the frequent resort to a plot-oriented schema that
announces the outcome only once, at the judgment’s end, suggests that
many jurists and casebook editors find something of value in a structure
that cultivates some degree of suspense, even if it would not occur to
them to explain their motives on that ground.11
But even when judgments themselves—as rendered by courts or edited
8. For a few recent examples, see, for example, Snyder v. Phelps, 131 S. Ct. 1207, 1210 (2011)
(Roberts, C.J.); FCC v. AT&T Inc., 131 S. Ct. 1177, 1178 (2011) (Roberts, C.J.); Staub v. Proctor
Hosp., 131 S. Ct. 1186, 1187 (2011) (Scalia, J.). Of course, current decisions appear with a syllabus
preceding the text of the decision and summarizing the holding, but the point remains that the
opinions themselves often dispense with the “front-loaded” structure so often recommended by
teachers of legal writing.
9. Report of the Committee on Legal Education, 15 ANN. REP. A.B.A. 317, 357 (1892). This was
a common reason for recommending the case method among its early supports.
10. William F. Brewer & Edward H. Lichtenstein, Event Schemas, Story Schemas, and Story
Grammars, in IX ATTENTION AND PERFORMANCE 363, 365 (J. Long & A. Baddely eds., 1981); see
also their related study, cited in supra note 3. For a recent discussion that extends these ideas through
a contrast between narrative openness and closure, focusing on the idea that suspense and curiosity
arise when the reader is made aware that information is being withheld, see Eyal Segal, Closure in
Detective Fiction, 31 POETICS TODAY 153 (2010).
11. Without drawing on the Brewer-Lichtenstein model, commentators on other genres have
found similar—arguably unwitting—commonalities involving the development of suspense. See, e.g.,
Barbara Czarniawska, Management She Wrote: Organization Studies and Detective Stories, 5
CULTURE & ORG. 13 (1999), reprinted in CZARNIAWSKA, WRITING MANAGEMENT: ORGANIZATION
THEORY AS A LITERARY GENRE 79 (1999). A deliberate effort to cultivate this effect in a judgment
would normally be regarded as irreverent, as we may see, for example, in the rendition of a hardboiled
detective story in the dissent from the denial of certiorari in Pennsylvania v. Dunlap, 129 S. Ct.
448 (2008).
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2011] Stern 343
by law professors—are not modeled on the structure of suspenseful
narratives, they are often treated in the classroom as the basis of a cluedriven
search. That way of teaching legal reasoning is easier with a
narrative form that reenacts the underlying assumptions of this
pedagogical method, but the same approach may be pursued even when
the cases do not take that form—just as one might, for example, take a
legal treatise and approach it as a picaresque novel.12
Thus while the
following discussion often refers to the form of written judgments, the
argument is more concerned with a way of using cases in the service of
legal reasoning. The two are not entirely distinct, because a view of how
legal reasoning works is very likely to inform a writer’s ideas about how
to frame a persuasive legal argument, and thus case-method training is
likely to promote distinctive styles of writing. However, this factor is only
one among many that informs judges’ ideas about how to express the
justification for a decision. I explore the detective impulse here in the
same way that a social scientific model might seek to explain the effects
of a particular factor without claiming that it controls the operations of a
complex network.
Case-method pedagogy promotes a style of reasoning that understands
legal concepts as things that must be excavated from the depths of the
cases because they often fail to bear their meaning on their surface.13
This
mode of investigation, central to the case method and to the detective
story, reflects a style of thought that treats its products as a kind of buried
artifact. The correspondence is not surprising, because the new legal
educators of the later nineteenth century and the new style of detective
fiction that emerged around the same time have common intellectual roots
in the forms of reconstructive science that had been developed some
decades earlier. In various scientific fields, particularly geology, the
practice of tracing effects back to causes attracted increasing interest that
became even more pronounced in the wake of Darwin’s work on
evolution. The new science had widespread influence in many areas of
thought. Scholars have discussed its connection to the detective story, and
have hinted at its relation to legal education, but have not examined the
interrelation between these developments.
The new style of legal education, introduced at Harvard in 1870 and
12. Arthur Allen Leff, Economic Analysis of Law: Some Realism about Nominalism, 60 VA. L.
REV. 451, 451 (1974).
13. For a recent discussion of methodological questions that arise from the surface/depth model
of interpretation, see Stephen Best & Sharon Marcus, Surface Reading: An Introduction, 108
REPRESENTATIONS 1 (2009).
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344 Yale Journal of Law & the Humanities [Vol. 23:339
adopted at most American law schools by 1920,14
had dramatic effects.
Once legal reasoning takes the form described above, the search for
buried concepts does not merely serve as yet another procedure that might
help to illuminate the decisions, but instead it helps to inform legal
thinkers’ beliefs about how to craft an argument. Today, few would
subscribe to Langdell’s premise that certain fundamental legal principles
have an objective existence and are merely awaiting discovery, but there
is nevertheless widespread support for the idea that a powerful legal
argument will bring out implicit considerations that ought properly to
drive future decisions, rather than merely reiterating the rationales already
stated explicitly in the leading decisions handed down thus far.
Today, the excavation of hidden premises and principles is one of the
most familiar moves in legal analysis. “Thinking like a lawyer” entails,
among other skills, the ability to dissect an opinion, isolating the essential
components of the analysis and parsing the court’s language and
reasoning to bring out the underlying assumptions, value judgments,
policy decisions, and contradictions, along with the difficulties that the
decision glosses over. The same skill can be applied to statutory
questions, transactional dilemmas, and the like, but for more than a
century, it has been taught primarily through the appellate opinion. The
student’s academic diet thus consists mainly of concrete disputes,
packaged with an overview of the dispute’s origins and an explanation of
the court’s rationale for its resolution.
In what follows I explore the relations between detective fiction and
case-method teaching by showing in more detail what was new about
each of these in the later nineteenth century. Part I begins with the striking
example of Melville Davisson Post, whose fiction of the 1890s aligns
legal thought with detection, drawing on the example of Sherlock Holmes
in stories that present legal principles as puzzles to be solved. This part
then turns to the changes in legal education associated with Christopher
Columbus Langdell at Harvard, and discusses the intellectual roots of the
case method, the justifications offered in its support, and the narrative
tendencies that it relies on and promotes. Part II turns to the origins of the
modern detective story near the end of the nineteenth century and shows
how the genre developed from the same scientific background as the case
method. This section then examines in greater detail some of the ways in
14. ROBERT STEVENS, LAW SCHOOL: LEGAL EDUCATION FROM THE 1850S TO THE 1980S, at 41,
63-64, 112-13 (1983); Bruce A. Kimball, Mr. Langdell’s Emblematic ‘Abomination’: The
Proliferation of Case Method Teaching, 1890-1915, 46 HIST. EDUC. Q. 190 (2006).
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which case-method pedagogy may be said to cultivate the same habits as
detective fiction, and concludes with some examples in which courts have
expressly invoked the analogy to describe their own procedures or have
crafted doctrines with the aid of propositions borrowed from detective
stories. Part III considers some examples of detective fiction, pursuing the
analogy further by asking why lawyers often figure as detectives in these
stories. In part, this investigation reaffirms the point that lawyers are
convenient exponents of the analytical methods that detective fiction
claims to demand of its readers. This section also shows how detectives,
like lawyers, may use these methods to bring new facts into being, and
may validate their professional credentials by expressing a disinterested
view that treats the analytical enterprise as a certain kind of game. Finally,
in a short conclusion, I show how the analogy with detective fiction might
apply to a particular case (MacPherson v. Buick Motor Co), as edited for a
casebook. I close by considering the doctrinal implications of the
analytical procedures described here, noting that the late nineteenth
century witnessed the emergence of a new doctrinal approach in Supreme
Court jurisprudence—an approach that discovered underlying rights
behind express constitutional guarantees.
I. POST AND LANGDELL ON THE CASE
The legal and detective instincts were combined in the early stories of
Melville Davisson Post, who later became one of the pioneers of
American mystery fiction.15
Post completed his law studies in 1892,16
and
began law practice at a time when the case method was becoming a
subject of widespread discussion not only among law professors, but
among lawyers more generally.17
In 1896, Post published his own
casebook—not a textbook for law students, but a collection of stories
based on various doctrines in criminal law, with citations to real cases
thrown in to appease the skeptical reader, or to entice the curious. The
Strange Schemes of Randolph Mason centers on a Sherlock Holmesian
lawyer who broods in his office, waiting for challenging problems that
will save him from ennui. (In the book’s introduction, Post refers
specifically to Doyle’s detective, who had his first run in the Strand
Magazine from 1891 to 1893.)18
In each story, after demanding the
15. CHARLES A. NORTON, MELVILLE DAVISSON POST: MAN OF MANY MYSTERIES (1973).
16. Id. at 20-21.
17. STEVENS, supra note 14, at 60.
18. MELVILLE DAVISSON POST, THE STRANGE SCHEMES OF RANDOLPH MASON 3 (New York,
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346 Yale Journal of Law & the Humanities [Vol. 23:339
client’s unwavering compliance, Mason delivers a set of seemingly
absurd instructions. Inevitably, it transpires that he has spotted a loophole
that allows the client to commit an immoral act with impunity, but Post
reveals this only at the end, when he explains the doctrine that guides the
plot. Once it becomes clear that Mason’s schemes are always shrewd
efforts to skirt the law, the reader learns to scrutinize his advice in order to
predict the rule that Post will eventually unveil.
In the volume’s most frequently anthologized story, The Corpus
Delicti, Mason advises a blackmail victim to kill his tormenter and to
dissolve her body in sulfuric acid. Without witnesses, the prosecution
must rely on circumstantial evidence. Since a conviction requires direct
evidence of the crime, the murderer is freed.19
In The Error of William
Van Broom, a man who has gambled away his sister’s inheritance
recuperates the loss by gaining a jeweler’s trust on the strength of a forged
letter of introduction, and then “borrowing” several thousand dollars’
worth of gems. Presented with the letter, the jeweler’s attorney explains
that it cannot support a claim for fraud because the document does not
purport to create any legal liability.20
In The Men of the Jimmy, Mason
tells some down-and-out criminals how to revive their fortunes by falsely
informing a millionaire that they are about to learn the location of his
kidnapped son. After they have collected the reward and have been
arrested for failing to produce the child, Mason frees them by arguing that
a false representation must refer to an already extant circumstance, and so
a false claim about the future is not actionable.21
In each instance, Post uses a structure borrowed from detective fiction
to examine legal doctrines, in stories that are accompanied by case squibs
to validate them. Though no one would mistake The Strange Schemes for
a law casebook, the similarities are nevertheless striking. Anyone trained
by the case method will recognize the cognitive demands of reading a
narrative and picking out the operative details that will drive the legal
analysis. In both instances, the reader who accepts the challenge is trying
to predict how the story will turn out and why. In Post’s stories, this
G.P. Putnam’s Sons 1896). For helpful discussions of these stories, see LEROY PANEK, THE ORIGINS
OF THE AMERICAN DETECTIVE STORY 179-80 (2006); Francis M. Nevins, From Darwinian to Biblical
Lawyering: The Stories of Melville Davisson Post, 18 LEGAL STUD. FORUM 177 (1994); Patricia J.
Brown, The Image of the Attorney: The Character of Attorney Randolph Mason in Three Books by
Melville Davisson Post, 1896-1907 (unpublished manuscript), available at
http://works.bepress.com/patricia_brown/1/.
19. POST, supra note 18, at 11.
20. Id. at 143.
21. Id. at 169.
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strategy has the effect of marking the plot as a legal puzzle with a
doctrinal solution that resolves the reader’s suspense.
Post’s accomplishments should not be exaggerated. It is no accident
that his stories are not widely read today, given their wooden characters
and dialogue.22
But the stories seem to have been read with interest in
some circles, as may be seen from a decision by the Supreme Court of
Appeals of West Virginia in 1897, one year after the publication of The
Strange Schemes. In a case concerning an attempt by one member of a
partnership to defraud the other, the court opined that the defendant’s plan
resembled “a Randolph Mason scheme.”23
Evidently the allusion was
thought to be recognizable without any need for further explanation.
Post’s stories highlight, in an unusually explicit and perhaps
inadvertently comic fashion, a connection between legal reasoning and
detection that many of his contemporaries also noticed.24
The Randolph
Mason stories might almost be described as briefs on behalf of the case
method that had been promoted at Harvard since 1870 and that was
finally, by the 1890s, beginning to gain more general currency at other
law schools. But if Post’s stories share the Langdellian insight that the
narrative form offers a distinctive vehicle for conveying legal concepts,
Langdell would have been disappointed in the doctrinal lessons that Post
provides. As the examples above show, the stories are invariably working
their way towards a legal principle, but not to reveal basic concepts of the
sort that Langdell favored in his explanations of the virtues of the case
method. The points that resolve Post’s plots are prosaic doctrines that
anyone might find stated explicitly in a treatise or a judgment. Hence a
reviewer could object that in “showing the many loopholes through which
a criminal can escape [with the help of] a shrewd lawyer,” the stories
merely displayed what an “average intellectual lawyer” would regard as
“commonplace, everyday practices.”25
22. In the introduction, Post implicitly acknowledges this defect, remarking that readers seek to
have their minds challenged by “the problem of the chess-board when the pieces are living.” Id. at 2.
Post adds that he hit upon the figure of Randolph Mason because the plan for the stories required “a
character who should be without moral sense and yet should possess all the requisite legal acumen.
Such a character is Randolph Mason, and while he may seem strange he is not impossible. . . . Might
not the great lawyer, striving tirelessly with the problems of men, come at last to see only the
problem, with the people in it as pieces on a chess-board?” Id. at 8-9.
23. Grobe v. Roup, 28 S.E. 699, 700 (W. Va. 1897). Post’s story Woodford’s Partner involves a
similar fraud, which Mason recommends because a member of a partnership is not criminally liable
for converting partnership property to his own use. POST, supra note 18, at 93.
24. See infra text accompanying notes 85-92.
25. Book Review, The Strange Schemes of Randolph Mason, 4 AM. LAW. 421 (1896). H.S.
Richards was presumably thinking of stories in this genre when he observed that in “the press and the
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348 Yale Journal of Law & the Humanities [Vol. 23:339
Langdell had much greater ambitions for his new method of legal
education. In 1870, when he introduced the case method, most American
law courses were taught through lecture and memorization. The professor
laid out the principles, decanting his knowledge into the students’ heads,
and the students demonstrated their mastery of the material through
recitation.26
Cases were used to show how the principles applied rather
than providing the means through which they were discovered. With the
analytical work done in advance, students needed only to demonstrate that
they could replicate the pattern. A central premise of Langdell’s approach
was that the case method “put the responsibility on the student,” creating
“[the] feeling that he has built up a knowledge of law for himself.”27
Only
by retracing the judge’s reasoning, Langdell contended, could the student
arrive at the essential concepts animating the doctrine. Textbooks
therefore had to take care not to use chapter headings and section names
that might “giv[e] the student the answer before he has done the
problem.”28
It was crucial to keep students focused on the case itself and
to prevent them from obtaining summaries that “contrived to unlock its
mysteries.”29
Langdell was not the first to propose that legal study might be centered
on cases rather than treatises. As early as 1829, a young English lawyer
named John Barnard Byles could question the use of “study[ing] . . .
popular magazines . . . . [t]he lawyer is portrayed as the player of a game, prone to mystery, and
expensive circumlocution, an obstructionist at best.” H.S. Richards, Address of the President, 4 AM.
L. SCH. REV. 83, 85 (1915).
26. WILLIAM P. LAPIANA, LOGIC AND EXPERIENCE: THE ORIGIN OF MODERN AMERICAN LEGAL
EDUCATION 23-25 (1994); STEVENS, supra note 14, at 54, 61, 67 n.24, 70-71 n.83, 80, 157, 161
(1983); George Chase, Methods of Legal Study, 1 COLUM. JURIST 69 (1885); Simeon E. Baldwin, The
Recitation System, 2 COLUM. JURIST 1 (1885); William Dennis, Object-Teaching in Law Schools, 21
AM. L. REV. 228 (1887); Steve Sheppard, Casebooks, Commentaries, and Curmudgeons: An
Introductory History of Law in the Lecture Hall, 82 IOWA L. REV. 547, 574-82 (1997).
27. STEVENS, supra note 14, at 54.
28. SAMUEL WILLISTON, A SELECTION OF CASES ON THE LAW OF CONTRACTS, at iii (1903). For
other examples, see JOSEPH HENRY BEALE, JR., A SELECTION OF CASES AND OTHER AUTHORITIES
UPON CRIMINAL LAW, at v (Cambridge, Harvard Law Review Publishing Ass’n 1894) (“That students
may get the benefit to be derived from studying cases, it is necessary to omit headnotes.”); JOHN
CHIPMAN GRAY, SELECT CASES AND OTHER AUTHORITIES ON THE LAW OF PROPERTY v (Cambridge,
Charles W. Sever 1888) (“As one of the main objects in the study of cases is to acquire skill and
confidence in extracting the ratio decidendi, the omission of head-notes from a collection like this is
an essential part of the scheme.”); WILLIAM A. KEENER, A SELECTION OF CASES ON THE LAW OF
QUASI-CONTRACTS, at vii (New York, Baker, Voorhis 1888) (“As the printing of head-notes would be
inconsistent with this system of teaching, they have been omitted.”); and JAMES BRADLEY THAYER,
SELECT CASES ON EVIDENCE AT THE COMMON LAW, at iv (Cambridge, Charles W. Sever 1892) (“In
omitting headnotes . . . I have had in mind the special use for which this book is intended.”).
29. E. Allan Farnsworth, Contracts Scholarship in the Age of the Anthology, 85 MICH. L. REV.
1406, 1417 (1985).
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general rules, and common treatises . . . . without accompanying examples
in the shape of cases.”30
Byles emphasized that “the practical lawyer must
divide, and distinguish, and decompose,” and that these skills could be
developed only by “go[ing] at once to the fountainhead, and draw[ing] . . .
knowledge from the reports.”31
While the course of case study advocated
here has much in common with Langdell’s, it lacks Langdell’s emphasis
on fundamental principles to be discerned as the ultimate basis for the
court’s judgment. Byles describes a way to cultivate certain lawyerly
skills, but not necessarily by means of the “penetrating analysis” that the
case method would be credited with promoting. Moreover, Byles’s
recommendations were not adopted as the basis of an institutionalized
program of study but instead were left for individual students to
implement as best they could. Langdell’s achievement was to fuse an
approach to legal analysis—already available in legal thinking but hardly
the dominant perspective—with a pedagogical style that satisfied long-felt
needs among lawyers.
Without expressly drawing on the example of the detective story,
advocates of the case method emphasized its mystery-solving capacity,
explaining that students should be “compel[led] to discover the principles
which [the cases] have settled.”32
The first major survey of the effects of
case-method teaching in American law schools, published in 1914,
observed that the advantage of the new approach over the “older text-
30. JOHN BARNARD BYLES, A DISCOURSE ON THE PRESENT STATE OF THE LAW OF ENGLAND,
THE PROPOSED SCHEMES OF REFORM, AND THE PROPER METHOD OF STUDY 38 (London, S. Sweet
1829). For another contemporaneous endorsement of learning law by studying cases, see Porter, supra
note 5. For more on Byles, see ALFRED ZANTZINGER REED, TRAINING FOR THE PUBLIC PROFESSION
OF LAW: HISTORICAL DEVELOPMENT AND PRINCIPAL CONTEMPORARY PROBLEMS OF LEGAL
EDUCATION IN THE UNITED STATES WITH SOME ACCOUNT OF CONDITIONS IN ENGLAND AND
CANADA 371-73 (Carnegie Foundation for the Advancement of Teaching Bulletin No. 15, 1921)
(discussing Byles’s recommendations in relation to Langdell’s introduction of the case method); John
H. Landman, Anent the Case Method of Studying Law: Langdell and the Langdellian Method of
Studying Law, 4 N.Y.U. L. REV. 139, 144 (discussing Byles’s “proposal of the study of Law as the
judges themselves have declared it to be.”). Landman adds that Byles “was not a true precursor of the
Case Method of studying Law,” because he “suggested the study of cases as problems or
illustrations.” Id. at 144 n.13. The language quoted above, however, clearly shows that Byles regarded
cases as primary sources of knowledge and tools for teaching the skills of legal reasoning. See also
STEVENS, supra note 14, at 66 n.14 (discussing John Pomeroy’s use of case-method teaching at NYU
and Hastings).
31. BYLES, supra note 30, at 39.
32. William A. Keener, The Inductive Method in Legal Education, 28 AM. L. REV. 709, 723
(1894) (quoting J.C. Gray, Cases and Treatises, 22 AM. L. REV. 756, 763 (1888) (internal quotation
marks omitted)); see also Edward J. Phelps, Methods of Legal Education, 1 YALE L.J. 139, 153
(1892) (explaining that students must be taught “to discover, as the scientific investigator hopes by his
experiments with the forces of nature, the fundamental principles underlying the concrete
manifestations of their influence.”).
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350 Yale Journal of Law & the Humanities [Vol. 23:339
book school” was the ability to train students “in digging out the
principles through penetrating analysis of the materials found in separate
cases.”33
This account is consistent with the justifications that Langdell
offered when he introduced the case method forty years earlier. He
explained that the search would move far beyond the various formulations
in which courts couch their holdings (the merely correct statements of law
that satisfied Post), to get at a few essential truths: “[T]he number of
fundamental legal doctrines is much less than is commonly supposed; the
many different guises in which the same doctrine is constantly making its
appearance . . . being the cause of much misapprehension.”34
The careful
student would shoulder the burden of discovering the unifying strands
connecting these superficially different guises in a process that Langdell
described in scientific terms. In one of his most famous pronouncements,
he recommended the study of cases as a way to promote “legal science,” a
way to turn “the library . . . [into] all that the laboratories of the university
are to the chemists and physicists.”35
The scientific analogy was a common one among nineteenth-century
lawyers who argued for greater clarity, coherence, and consistency within
and across legal fields,36
but it takes on additional significance in the
context of Langdell’s efforts. Indeed, the leading explanations of
Langdell’s achievement have focused on the relationship between the case
method and his views of law as a science.37
William LaPiana, for
example, has discussed Langdell’s focus in the classroom on the “narrow,
technical rules that make up the real work of the lawyer” as a means of
establishing a pedagogical environment for the “new model legal science”
33. Henry S. Pritchett, Preface to JOSEF REDLICH, THE COMMON LAW AND THE CASE METHOD
IN AMERICAN UNIVERSITY LAW SCHOOLS, at v, viii (1914).
34. CHRISTOPHER COLUMBUS LANGDELL, Preface to A SELECTION OF CASES ON THE LAW OF
CONTRACTS, at vi (1871).
35. Christopher Columbus Langdell, Address to the Harvard Law School Association (Nov.
1886), quoted in ARTHUR E. SUTHERLAND, THE LAW AT HARVARD 175 (1967).
36. For helpful overviews on the subject, see Howard Schweber, Before Langdell: The Roots of
American Legal Science, in 2 THE HISTORY OF LEGAL EDUCATION IN THE UNITED STATES 606 (Steve
Sheppard ed., 1999) [hereinafter Schweber, Before Langdell]; and Howard Schweber, The “Science”
of Legal Science: The Model of the Natural Sciences in Nineteenth-Century American Legal
Education, 17 LAW & HIST. REV. 421 (1999) [hereinafter Schweber Legal Science]. On Langdell, see
especially Schweber, Legal Science, supra, at 455-64. See also Laura I. Appleman, The Rise of the
Modern American Law School: How Professionalization, German Scholarship, and Legal Reform
Shaped Our System of Legal Education, 39 NEW ENG. L. REV. 251, 284-85 (2005) (on Langdell and
legal science); and Michael H. Hoeflich, Law and Geometry: Legal Science from Leibniz to Langdell,
30 AM. J. LEGAL HIST. 95 (1986) (same).
37. For a useful overview of the scholarship on Langdell, see Bruce A. Kimball, The Langdell
Problem: Historicizing the Century of Historiography, 1906-2000s, 22 LAW & HIST. REV. 277
(2004).
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2011] Stern 351
devoted to “find[ing] principles in the original sources of the law, which
are the cases.”38
Thomas Grey, similarly, notes that Langdell “shift[ed]
the focus of instruction from abstract principles to cases, . . . promot[ing]
[a] modern, case-centered view of adjudication”;39
however, in contrast to
LaPiana, Grey argues that Langdell’s legal science was not the
embodiment of modern legal thought but rather was the precondition for
the latter’s emergence. To that end, Grey seeks to explain what made
legal science scientific, and he focuses on the significance of
“completeness, formality, and conceptual order . . . as the values of
legality” in Langdell’s jurisprudential philosophy.40
An additional factor in explaining Langdell’s scientific leanings and the
methods they led him to advocate is his own background in natural
science. Langdell’s interest in botany is sometimes cited to explain his
dedication to classification as a legal-scientific enterprise. His biographer,
Bruce Kimball, notes that as a Harvard undergraduate in the late 1840s,
Langdell took a natural history course focusing on botany and zoology.
This course “provided the conceptual frame for Langdell’s taxonomic
analogies between law and natural science.”41
Langdell’s botany
professor, Asa Gray, saw that “one needed taxonomy in order to
recognize evolutionary change,” and as Kimball observes, Langdell
“[f]ollow[ed] Gray’s understanding” and similarly emphasized the value
of taxonomy in clarifying evolutionary data when he wrote that
[l]aw, considered as a science, consists of certain principles or
doctrines. . . . Each of these doctrines has arrived at its present
state by slow degrees; in other words, it is a growth, extending in
many cases through centuries. This growth is to be traced in the
main through a series of cases . . . . [Therefore a casebook should]
select, classify, and arrange all the cases which [have] contributed
. . . to the growth, development, or establishment of . . . [the law’s]
essential doctrines.42
38. LAPIANA, supra note 26, at 57-58, 78.
39. Thomas Grey, Langdell’s Orthodoxy, 45 U. PITT. L. REV. 1, 1 (1983).
40. Id. at 6.
41. BRUCE A. KIMBALL, THE INCEPTION OF MODERN PROFESSIONAL EDUCATION: C.C.
LANGDELL, 1826-1906, at 26 (2009). For other discussions associating Langdell’s legal-scientific
orientation with his botanical interests, see, for example, SUTHERLAND, supra note 35, at 175-76;
WILLIAM W. WIECEK, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT 90 (1998); and Hugh C.
Macgill & R. Kent Newmyer, Legal Education and Legal Thought, 1790-1920, in THE CAMBRIDGE
HISTORY OF LAW IN AMERICA, VOL. II: THE LONG NINETEENTH CENTURY (1789-1920) 36, 50
(Michael Grossberg & Christopher L. Tomlins eds., 2008).
42. Id. (quoting LANGDELL, supra note 34, at vi).
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352 Yale Journal of Law & the Humanities [Vol. 23:339
Langdell’s training in taxonomy helps explain his efforts to understand
the law as comprising a coherent, contained, definable set of essential
doctrines.43
The evolutionary aspect of his scientific training, however, is also
significant and has received less emphasis. In the discussion quoted
above, Kimball hints at, but does not spell out, the scientific tenor of
Langdell’s determination to seek out the root causes of surface
phenomena, and to identify the underlying principles that yield the visible
data of the cases, allowing us to see modern law as a “growth” produced
by a slow, evolutionary process. Stephen A. Siegel notes that Langdell’s
assertion about the small number of “fundamental legal doctrines”44
finds
a parallel in the research of Charles Lyell, a precursor of Darwin whose
publications on geology in the 1830s showed that “Earth’s diverse
landscapes were the product of a relatively small number of geologic
forces.”45
Lyell’s very influential work46
has been described by cultural
historians as an important delineation of a procedure that gained
significant explanatory power and prestige during the nineteenth century:
the procedure of studying causes by starting with effects and tracing a
backwards route to their origins.47
The method might seem merely
another example of the inductive operation that moves from specific
examples to a universal proposition (as against the deductive application
of general principles to a set of facts). However, in moving back and forth
between example and theory, tentatively postulating the latter and
43. Langdell owed his appointment as dean to Charles W. Eliot, who became president of
Harvard in 1869. Eliot, trained as a chemist, had a strong interest in pedagogical reform, and seems to
have shared Langdell’s ideas about legal education. Anthony Chase, The Birth of the Modern Law
School, 23 AM. J. LEGAL HIST. 329, 334-35 (1979). Eliot also reformed the Medical School,
introducing “clinical and laboratory instruction . . . at the expense of the predominant lecture method
of teaching medical subjects.” Id. at 340; see also LAPIANA, supra note 26, at 177 n.19 (noting
similar changes in legal and medical education at Harvard, under Eliot).
44. LANGDELL, supra note 34, at vi.
45. Stephen A. Siegel, John Chipman Gray and the Moral Basis of Classical Legal Thought, 86
IOWA L. REV. 1513, 1520-21 (2001) (citation omitted); see also Landman, supra note 30, at 139
(“What Lyell did for Geology . . . and what Darwin did for Biology . . . Langdell did . . . for the
common law.”).
46. CHARLES LYELL, PRINCIPLES OF GEOLOGY; BEING AN ATTEMPT TO EXPLAIN THE FORMER
CHANGES OF THE EARTH’S SURFACE, BY REFERENCE TO CAUSES NOW IN OPERATION, 3 vols.
(London, J. Murray, 1830-33). The book sold well, going through twelve editions before Lyell’s death
in 1875 and many more afterwards. KEITH FRANCIS, CHARLES DARWIN AND THE ORIGIN OF SPECIES
106 (2007).
47. The most influential treatment of this procedure is Carlo Ginzberg, Clues: Roots of an
Evidentiary Paradigm, in CLUES, MYTHS, AND THE HISTORICAL METHOD (1989). See also FRANCO
MORETTI, Clues, in SIGNS TAKEN FOR WONDERS: ESSAYS ON THE SOCIOLOGY OF LITERARY FORMS
130 (1983) (taking up similar questions); Ginzberg, Morelli, Freud and Sherlock Holmes: Clues and
Scientific Method, 9 HIST. WORKSHOP 5 (1980) (pursuing the same line of inquiry).
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2011] Stern 353
continuing to refine the hypothesis by reexamination of the data, this
method is better seen as enacting a process that would be formalized by
Charles Peirce as “abduction.”48
Lyell’s interpretations of fossil evidence
in Principles of Geology (1830-33) encouraged further scientific work
along the same lines, and also “stimulate[d] . . . common reader[s] of
popular science” to engage in similarly speculative retracings by
“invent[ing] new arrays of events, and . . . construct[ing] new narratives
corresponding to those arrays, in order to explain the sequences of
different fossil species in the visible story of creation written in the layers
of the earth’s crust.”49
This description of Lyell’s research helps to pinpoint a similarity
between the particular kind of science being developed in the midnineteenth
century and the operations that Langdell demanded of his
students. Completeness, formality, and conceptual order loom large in
Langdell’s scientific aims, but an additional feature of his pedagogical
method involves its focus on cases. His approach treats cases as the
equivalent of different fossil species representing the top layer of a system
whose inner workings can be understood only after the student
speculatively constructs narrative explanations that reach backwards and
forwards in a search for the correct principle. The exercise is properly
characterized in terms of narrative because the case is a narrative form.
By requiring students to master legal reasoning by engaging with this
medium, Langdell replaced a pedagogical method that had used narrative
only incidentally (as illustrations of doctrines presented axiomatically)
with a method that relied centrally on that form.50
In the classroom,
students produce more narrative as they are asked what rule their answer
would generate, how that rule affects the case at hand, and what results
would follow in hypothetical future cases.51
48. PHILOSOPHY OF SCIENCE: AN HISTORICAL ANTHOLOGY 10-11 (Timothy McGrew et al. eds.,
2009). The literature on Peircean abduction and its relation to detective fiction on the one hand, and to
legal reasoning on the other, is immense. The essays in UMBERTO ECO, THE SIGN OF THREE: DUPIN,
HOLMES, PEIRCE (1988) provide a good introduction to the literary side of the discussion. For
examples on the legal side, see LLOYD L. WEINREB, LEGAL REASON: THE USE OF ANALOGY IN
LEGAL ARGUMENT 20-25 (2005); and Scott Brewer, Traversing Holmes’s Path Toward a
Jurisprudence of Logical Form, in THE PATH OF THE LAW AND ITS INFLUENCE: THE LEGACY OF
OLIVER WENDELL HOLMES, JR. 94, 109-20 (Steven J. Burton ed., 2000).
49. CHARLES J. RZEPKA, DETECTIVE FICTION 69 (2005).
50. Julie Stone Peters, Review Essay, 9 CARDOZO STUD. L. & LIT. 259, 265 (1997) (noting that
“the celebrated ‘case method’ was first regularly taught in the 1870s” and speculating that its
“introduction . . . [may have been] a symptom of a . . . desire for narrative”); Cass Sunstein, On
Analogical Reasoning, 106 HARV. L. REV. 741, 771 (1993) (noting that “the case method operates in
part through narratives.”).
51. Langdell evidently included such questions in his classroom discussions. A former student
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354 Yale Journal of Law & the Humanities [Vol. 23:339
The narrative form of the exercise helps to advance both Langdell’s
taxonomic aims and his reconstructive procedures. When delivered to
students in the form of rules, axioms, or maxims, doctrinal propositions
may be capable of taxonomic arrangement, as Langdell recommended,
but the classificatory impulse is bound to be thwarted by the brevity of the
materials. Some limited efforts could be undertaken—for example, rules
in contract law could be arranged in sets relating to offer, acceptance,
breach, etc.—but the fundamental principles that Langdell hoped to
unearth are likely to be elusive. Rules, even when collected in groups,
give us no access to their origins.52
When derived from cases and
examined narratively in the classroom, however, doctrinal propositions
afford much greater scope for taxonomy. A narrative can have any
number of steps between its beginning and end, and those steps may
themselves provide more fodder for classification, as analogies and
conceptual relations among them become apparent. The narrative
approach thus provides a means of managing complexity, by allowing not
only for the inspection of rules but also for the testing and rearrangement
of the many threads that connect the deeper principles with their surface
manifestations. By the same token, where rules alone would hardly
support a reconstructive effort, an exploration of the rules through a
narrative medium makes this enterprise much easier to contemplate.
When presented in the form of axioms, rules tell us nothing about the
reasoning process, or the history of alternative approaches, resulting in the
current doctrine. On the other hand, when we navigate a concrete dispute
and the legal arguments from which the rule emerges, it is much easier to
trace its earlier lineaments reconstructively through the pattern of facts,
precedents, refinements, and warring doctrines encountered along the
way.
These benefits still accrue even if both activities—the taxonomic and
reconstructive—are now seen as serving instrumental, policy-oriented
recalled that Langdell posed questions such as, “If A contracts with B to serve him one year at so
much per month, and at the end of six months’ service [A] dies, will his representatives be entitled to
recover against B for the six months’ service; and if so, how much and upon what principle?” Samuel
F. Batchelder, Christopher C. Langdell, 18 GREEN BAG 437, 441 (1906) (internal quotation marks
omitted).
52. This point had been noted long ago by Francis Bacon, who wrote in his preface to Maxims of
the Law (1630) that whereas treatises on civil law present rules and maxims in the form of “short dark
oracles” and “proverbs,” he preferred to accompany his maxims “with a clear and perspicuous
exposition; breaking them into cases, . . . and sometimes showing the reasons above whereupon they
depend.” 7 THE WORKS OF FRANCIS BACON 323 (James Spedding et al. eds., 1859). Bacon’s
example, as many commentators have observed, was not widely followed. See, e.g., Paul H. Kocher,
Francis Bacon on the Science of Jurisprudence, 18 J. HIST. IDEAS 3 (1957).
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2011] Stern 355
goals rather than revealing eternal truths about the legal system. The
outcome-oriented nature of this discussion teaches students that to be
worth excavating, the tacit premises should not just promote a nuanced
understanding of the dispute but should yield consequences that bear on
its resolution. Few today would agree with Langdell’s assumptions—and
probably few of his contemporaries did53
—but the form he proposed
continues to find adherents. He aimed to teach students how to move from
the surface of the text to an underlying explanation, and to identify and
disregard the superficially different doctrinal manifestations in search of
the truly basic principles that actually mattered. The value of the method
does not depend on the objective existence of those principles.
The advocates of the case method endorsed it as a proto-Deweyan
technique that aids the understanding and the memory because it trains
students in learning by doing,54
and requires them to overcome the
“difficulties” and “struggle” of independent investigation.55
But the case
method also trains students in the kinds of routines and algorithms that
embody elegance and that signal sophistication. The case method teaches
students that answers to legal questions generally cannot be found on the
surface, but must be discovered by sifting the visible evidence to find a
meaning that is buried at a deeper level. The corollary of this lesson is that
when a legal interpretation depends on probing under the surface of a case
to bring out implicit meanings, that interpretation should be preferred to
one that remains content with the surface meaning. By conducting the
search, the interpreter models the technique of an expert and thereby
certifies her analysis as the product of a legal professional. The aesthetic
values associated with this mentality include orderliness, precision,
thoroughness, and ingenuity. Just as the satisfying solution to a murder
mystery is a nonobvious one that depends on attention to subtleties and
psychological acuity about the characters’ motives, the law student learns
that doctrinal analysis is satisfying and persuasive when it undertakes a
methodical examination of tacit assumptions and implications to arrive at
an ingenious answer, one that could not be discerned without the
penetrating analysis that has produced it.
53. BRIAN Z. TAMANAHA, BEYOND THE FORMALIST/REALIST DIVIDE 67-90 (2010).
54. LAPIANA, supra note 26, at 26.
55. William A. Keener, Methods of Legal Education, 1 YALE L.J. 143, 147 (1892). On the macho
rhetoric invoked on behalf of the case method by its advocates, see STEVENS, supra note 14, at 54;
and Angela Fernandez, Spreading the Word: Litchfield Law School to the Harvard Case Method 83-
84 (2007) (unpublished J.S.D. dissertation) (on file with Yale Law School).
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356 Yale Journal of Law & the Humanities [Vol. 23:339
II. RECONSTRUCTIVE DETECTIVES
The case method emerged and began to flourish during roughly the
same period that witnessed the development of the modern detective
story, which has retained essentially the same features that it acquired
between the 1890s and the 1920s.56
Before that time, detective stories
were about crime, adventure, courage, and above all pursuit. They were
not stories in which the problem was solved with the aid of clues that the
reader was invited to analyze independently of the detective. Instead, the
crimes were generally solved through intuition, coincidence, or
providence.57
As literary critic Charles Rzepka explains, the use of the
clue marks “[t]he difference between detection and . . . detective
[stories].”58
By this Rzepka means that the presence of someone who calls
himself a detective is no guarantee that he will do any detecting. To catch
a thief, it may be sufficient to use a disguise, establish some contacts with
the underworld, and intimidate a few witnesses. Stories in this mold might
supply clues on occasion, but only to feed the narrative demands of the
chase. Rather than secreting clues for the reader to retrieve, the author
would announce their presence, pronounce on their meaning, and use
them to guide the detective’s next move in searching for the criminal.59
Until the mid-1880s these stories were not even regarded as belonging
to a distinct genre.60
As applied to fiction, the term “detective” was first
56. Of course, the intervening years have also seen the development of the hard-boiled detective
story and the postmodern detective story. But these forms continue to coexist with the classic
detective story rather than displacing it, and detective fiction crafted along classical lines—in which
there is a single, correct solution, capable of discovery through carefully planted clues—still accounts
for a significant part of the work being produced in the genre.
57. MORETTI, Clues, supra note 47, at 130; RZEPKA, supra note 49, at 10 (“The . . . ‘puzzle
element’ [involves] the presentation of the mystery as an ongoing problem for the reader to solve, and
its power to engage the reader’s own reasoning abilities. . . . [T]he ‘puzzle element’ is conspicuous by
its absence during most of this period [i.e., the mid to late nineteenth century].”).
58. RZEPKA, supra note 49, at 30. For fuller elaboration of the distinction, see id. ch. 4 (“From
Detectives to Detection”).
59. For an early example, see RICHMOND: OR, SCENES IN THE LIFE OF A BOW STREET OFFICER
(London: Colburn, 1827). In one scene, the hero observes that a missing child cannot have been
“stolen by the gipsies,” as the child’s parents assume, because “here was the pony left with a saddle
and bridle worth more than the boy’s whole suit”—a point that the detective immediately “urge[s]
with some eagerness . . . on the agitated mother.” 2 id. 7-8. For further discussion of the novel, which
Rzepka calls “the first novel in English to feature a professional detective protagonist throughout,”
see RZEPKA, supra note 49, at 67.
60. R.F. STEWART, . . . AND ALWAYS A DETECTIVE: CHAPTERS ON THE HISTORY OF DETECTIVE
FICTION 27-30 (1980). Stewart identifies an anonymous article, Detective Fiction, SATURDAY REV.
POL., LIT., SCIENCE AND ART, (London) Dec. 4, 1886, as the first instance of generic pigeonholing.
Id. at 27; see also MARTIN A. KAYMAN, FROM BOW STREET TO BAKER STREET 105-06 (citing
Stewart); id. at 109-110, 129-31 (noting that terms such as “detective literature,” “detective novel,”
and “detectivism” were used from the 1850s to the 1880s to describe action-based stories in which
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2011] Stern 357
used, in the mid-nineteenth century, for stories of cops and robbers, not
for a particular narrative form that cagily doles out the details according
to a formula designed to test the reader’s wits.61
Even the Sherlock
Holmes stories, often regarded as pathbreaking contributions to the genre
of detective fiction, rarely offer up clues for the reader’s analysis, and
have often been criticized for denying the reader the opportunity to
compete with Holmes in solving the crime. The clues in Doyle’s stories
are often described after the fact,62
to justify Holmes’s deductions instead
of allowing the reader to use them, and the meanings that he assigns tend
to rest on shaky foundations. Thus in 1902, the Green Bag—”an
entertaining magazine for lawyers”—could devote an entire article to
criticism of the detective’s fallacious reasoning.63
The recognition that
clues could figure not simply as details that revealed the detective’s
acuity, but also as tools for securing the reader’s engagement and for
advancing the story’s plot, took some time to permeate the genre.
It was the generation of mystery writers after Doyle who fully grasped
the clue’s potential and developed a genre that has continuing appeal.64
detectives unraveled secrets without specializing in any particular procedures for analyzing evidence);
id. at 133-34 (noting that ANNA KATHERINE GREEN, THE LEAVENWORTH CASE (1878) “resemble[es]
a modern ‘detective novel,’” but that Green shortly afterwards published XYZ: A DETECTIVE STORY
(1883), featuring a “detective . . . [who] is little more than a self-assumed spy, motivated by a
‘curiosity’ which is in no way intellectual”; who uses “procedures [which] are the standard illegalities
and coincidences”; and who “exhibits little control over the narrative.”). Kayman concludes that this
“first pre-Holmesian ‘Detective Story’ is, despite the superficial intellectual vocabulary, still an entire
genre away from Edgar Allen Poe.” KAYMAN, supra, at 135. At the end of the 1880s, the Albany Law
Journal could mock “the omnipotence of ‘the detective’ in the ‘detective’ novel” because he did no
detecting but simply prompted criminals to confess on sight:
He not only arrests people right and left on suspicion, without warrant and without proof of the
commission of any crime, but on his appearance everybody pants to confess and unburden
himself of all the secrets of his prison-house. He just comes in and says, “I am detective so-andso,”
whereupon the person addressed hurriedly proceeds to disclose his personal history and
doings in the most confiding manner.
[Anon.], Current Topics, 39 ALB. L.J. 425, 426 (1889).
61. KAYMAN, supra note 60, at 105-106 (“The first literary application of the epithet ‘detective’ .
. . occurs in 1850 with Dickens’ “‘Detective’ Anecdotes,” one of a series of journalistic articles
reporting the ‘real’ personalities and activities of the Detective Department. There is no suggestion
here of using the detective and his activities to generate a new fictional hero or form.”) (italics in
original).
62. Franco Moretti, The Slaughterhouse of Literature, 61 MOD. LANGUAGE Q. 207, 212-14
(2000). Early commentators noticed the point, but did not necessarily condemn it as a fault. Thus, for
example, the author of an interview with Doyle commended the stories for attaching meaning to “the
little things we regar[d] as nothings” and for allowing Holmes to recognize their significance “from
the first” while nevertheless “ingeniously contriv[ing] to hold his secret until we [get] to the very last
line in the story.” Harry How, A Day with Dr. Conan Doyle, 4 STRAND MAG. 182, 182-83 (1892).
63. J.B. Mackenzie, Sherlock Holmes’ Plots and Strategy, 14 THE GREEN BAG: AN
ENTERTAINING MAG. FOR LAW. 407 (1902).
64. Moretti, supra note 62, at 222. Kayman notes that typical features of mid-nineteenth-century
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Shortly after the turn of the century—some thirty years after Langdell
introduced the case method, and during the period when other schools
were flocking to adopt it—the clue was well on its way to becoming a
standard feature of detective fiction. In discussions of mystery-writing
published over the following decades, the proper use of the clue was one
of the primary considerations. In 1906, a reviewer explained that “[i]n an
ideal detective story all the clues to the true solution ought to be there
from the first, but so overlaid as to pass unnoticed.”65
By 1910 a
commentator on the genre could warn readers that in the typical detective
novel, “the long chain of initial clues will lead to nothing,” and “the most
important clue” would not surface “until about page 180.”66
In one of the
earliest efforts to review the genre comprehensively, published in 1913,
Carolyn Wells explained that the clue and the deductive method are
inextricably linked: “Deduction . . . is the motif of most of the detective
stories of to-day. It is an unusually perspicacious analytic deduction from
inconspicuous clues that we call ratiocination, or more familiarly, the
detective instinct.”67
The mystery writer’s task, Wells added, is “to
provide clues that lead to something, and that pique the reader into
endeavoring to find out for himself what it is.”68
By the 1920s, the same
points could be found in numerous discussions of the genre by such
leading practitioners as R. Austin Freeman, Willard Huntington Wright
(“S.S. Van Dine”), Ronald A. Knox, and Dorothy Sayers.69
Pursing a related theme, these commentators also insisted that to justify
the reader’s immersion in the clue-scrutinizing enterprise, the author must
detective fiction include “disguise, infiltration, false confidences and trust, entrapment, intimidation
of witnesses, illegal search, and spying on private correspondence or conversations from which [the
detective] obtains key information or virtual confessions.” KAYMAN, supra note 60, at 119.
Conspicuously absent from the list is analysis of evidence.
65. Cecil Chesterton, Art and the Detective, 251 LIVING AGE 505, 506 (1906). Chesterton also
complained that when writers “explain the problem at the last moment, . . . by introducing new
circumstances at which [the reader] could not possibly have guessed, . . . he has been cheated into
attempting to solve a puzzle which, as it turns out, was for him quite insoluble.” Id. Chesterton thus
may have been the first to raise this now-familiar complaint about “fair play.” He was the brother of
G.K. Chesterton, author of the Father Brown mysteries.
66. I.C. Cummings, Inside Views of Fiction: II—Detective Stories, 30 BOOKMAN 499 (1910).
67. CAROLYN WELLS, THE TECHNIQUE OF THE MYSTERY STORY 165 (1913). Wells was herself
the author of several mysteries whose titles (The Clue (1909), A Chain of Evidence (1912)) emphasize
these same issues.
68. Id. at 362.
69. R. Austin Freeman, The Art of the Detective Story (1924), in THE ART OF THE MYSTERY
STORY 7 (Howard Haycraft ed., 1946); Ronald A. Knox, A Detective Story Decalogue (1929), in THE
ART OF THE MYSTERY STORY, supra, at 194; Dorothy Sayers, The Omnibus of Crime (1929), in THE
ART OF THE MYSTERY STORY, supra, at 71; Willard Huntington Wright, Twenty Rules for Writing
Detective Stories (1928), in THE ART OF THE MYSTERY STORY, supra, at 189.
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observe the rules of “fair play”—that is, must provide enough clues to let
the reader work out the solution, and must not withhold vital information
known only to the detective. Some of the rules are puzzling (e.g., “No
Chinamen must figure in the story”70
); others seem puzzling but have
been explained by narrative theorists (e.g., “There must be no love
interest”71
); but most are readily explicable as a means of giving the
reader an “equal opportunity with the detective for solving the mystery.”72
Thus, for example, “[t]he problem . . . must be solved by strictly
naturalistic means”; “[t]he culprit must be determined by logical
deductions”; and “[t]he detective must not light on any clues which are
not instantly produced for . . . the reader.”73
As critics noted early on, the
process of writing a detective story mirrors the backwards-reasoning
process of the detective, in the sense that the writer begins with a solution
and then plants the evidence that leads there.74
(This point emerges, in
fact, in one of the first interviews with Doyle, published in 1892,75
and it
bears a striking similarity to the legal realist view about the backwardsoriented
slant of the opinion-writing process, in which the justifications
are supplied only after the judge has fixed on the conclusion.)76
In calling
70. Knox, supra note 69, at 195.
71. Wright, supra note 69, at 189. For an explanation of this rule, see LISA ZUNSHINE, WHY WE
READ FICTION: THEORY OF MIND AND THE NOVEL 141-52 (2006).
72. Wright, supra note 69, at 189.
73. Id.; Knox, supra note 69, at 196 (italics reversed).
74. See, e.g., A Detective’s Vade Mecum, 270 LIVING AGE 629, 629 (1911) (anonymous review
of G. AINSWORTH MITCHELL, SCIENCE AND THE CRIMINAL) (“The detective story is . . . written
backwards, and the author [has] carefully laid his clues along the track of the crime, [making it] easy .
. . for the detective, who is in on the secret, to pick them up as he goes along.”); Book Review, Many
Mysteries, 64 INDEP. (New York) 1035, 1036 (1908) (“It may be said of the detective story that it is
not written; it is constructed, often backward, from conclusion to the point of departure”). See also
Brooks, supra note 2, at 87 (discussing “the ‘retrospective prophecy’ of the narrative put together
from tracks and traces into a coherent plot that gains meaning from its end,” and concluding that
“‘retrospective prophecy’ perfectly characterizes the constitutional narratives written by the Supreme
Court, and perhaps indeed most legal narrative in general. It is a prophetic narrative cast in the
backward mode”).
75. Among the “interesting facts” that the interviewer mentions having learned is that “Dr. Doyle
invariably conceives the end of his story first, and writes up to it. He gets the climax, and his art lies
in the ingenious way in which he conceals it from his readers.” How, supra note 62, at 187.
76. Thus, for example, Max Radin described judges as “working their judgment backward, from
a desirable conclusion to one or another of a stock of logical premises.” Max Radin, The Theory of
Judicial Decision: Or How Judges Think, 11 A.B.A. J. 357, 359 (1925). See also JEROME FRANK,
LAW AND THE MODERN MIND 101 (1930) (“[S]ince the judge is a human being and since no human
being in his normal thinking processes arrives at decisions . . . by the route of . . . syllogistic
reasoning, it is fair to assume that the judge. . . will not acquire [an] artificial . . . method of reasoning.
Judicial judgments, like other judgments, . . . are worked out backward from conclusions tentatively
formulated.”); Joseph C. Hutcheson, Jr., The Judgment Intuitive: The Function of the “Hunch” in
Judicial Decision, 14 CORNELL L.Q. 274, 287 (1929) (quoting FRANK, supra, at 101). For more on
earlier articulations of this view, see TAMANAHA, supra note 53, at 82.
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360 Yale Journal of Law & the Humanities [Vol. 23:339
attention to the habit of plotting backwards, critics sometimes meant to
contest the “fairness” of a process in which the detective has been fed the
answers,77
but for those who emphasized the craft of writing, the central
point was that the author might accidentally violate the rules of fair play
by failing to give the reader sufficient access to the solution78
(just as a
judge, having already chosen the outcome according to the legal realist
critique, might patch up an unpersuasive rationale and issue a ruling that
seems merely to express the judge’s own values79
). The planting of clues,
then, must be careful, thorough, and attentive to the reader’s needs.
The dedication to cataloguing the rules of “fair play” reaffirms the
genre’s commitment to what the rule-makers called the “rational and
scientific” procedures now seen as facilitating its true aims.80
Whereas
reconstructive analysis has received only limited attention among
historians of legal education, historians of the detective story have
thoroughly explored the role of the reconstructive sciences in the genre’s
intellectual genealogy, and Lyell is an important figure in that account.
Rzepka, for example, treats the impulse to “invent new arrays of events,”
prompted by Lyell’s research,81
as a cognitive analogue and precursor to
the detective story’s emphasis on rewarding the same habits in its reader,
who is also engaged in tracing effects back to causes by treating clues as
“opportunities to invent imaginative, backward-looking arrays.”82
Similarly, Lawrence Frank devotes a significant amount of space to Lyell
77. See, e.g., A Detective’s Vade Mecum, supra note 74. Julian Hawthorne expressly defended
mystery writers against the “charge . . . that . . . [the mystery writer] is not sincere [because] he makes
his mysteries backward, and knows the answer to his riddle before his states its terms.” Julian
Hawthorne, Riddle Stories, in THE MOST INTERESTING STORIES OF ALL NATIONS: AMERICAN RIDDLE
STORIES 1, 6 (Julian Hawthorne ed., 1909). This practice, according to Hawthorne, “is not unfair”
because “the very object, ostensibly, of the riddle story is to prompt you to sharpen your wits,” and to
make the reader “the real detective in the case.” Id.
78. See, e.g., WELLS, supra note 67, at 6 (“[The reader] wants to learn [the] answer as
corroborative proof of his own solution, and not as a revelation.”).
79. For example, Jerome Frank states:
Talks with candid judges have begun to disclose that, whatever is said in opinions, the judge
often arrives at his decision before he tries to explain it. . . . [H]e often makes up his mind that
Jones should win the lawsuit, not Smith. . . . After the judge has so decided, then the judge
writes his ‘opinion.’ . . . The judge’s opinion makes it appear as if the decision were a result
solely of playing the game of law-in-discourse. . . . [But this explanation] omits many of the
factors which induced the judge to decide the case. Those factors (even to the extent that the
judge is aware of them) are excluded from the opinion. . . . Opinions, then, disclose but little of
how judges come to their conclusions. The opinions are often ex post facto; they are censored
expositions.
Jerome Frank, What Courts Do in Fact, 26 U. ILL. L. REV. 645, 653 (1932) (citation omitted).
80. Wright, supra note 69, at 191.
81. RZEPKA, supra note 49.
82. Id. at 27.
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and his colleagues when arguing that nineteenth-century fictional
detectives were “as concerned with epistemological and narratological
issues as any practitioner of an historical discipline who set out to
reconstruct the history of the universe, the changes in the earth’s surface
over time, or those species that had become extinct.”83
In a similar
account that connects the reconstructive method of the “historical or
palaetiological sciences” with the epistemological mode of the criminal
trial, Lindsay Farmer observes that “the reconstruction of the detective
proceed[s] by reasoning about possible motives as a means of linking the
diverse clues together; the traces acquire meaning through being
organised into a narrative account which prioritises the place of motive.”84
The correspondence between the methods of reconstructive scientists and
those on display in the detective story has been generally accepted, among
literary critics and historians of ideas, as an illustration of how conceptual
models can undergo cultural diffusion.85
Rzepka’s observation that
Lyell’s writings had a wide readership among non-scientists carries
significant explanatory force in this context, suggesting that the
reconstructive method was absorbed into everyday thinking, so that
readers might develop a taste for its intellectual pleasures that could be
satisfied by works of fiction, as well as by scientific writings.86
The idea that detective stories might offer readers a mental workout,
developing habits of thought that could be applied to other problems,
served as a common endorsement of their value. The Green Bag observed
in 1894 that “[d]etective stories have always been great favorites among
the legal profession” because they “keep the guessing faculty in
exercise.”87
George Jean Nathan, writing in 1909 about the distinctive
reading habits that characterize various professions, found that “lawyers
as a class liked detective stories best,” noting that “[t]here is something
about a detective story that possesses a keener fascination for . . . lawyers
83. LAWRENCE FRANK, VICTORIAN DETECTIVE FICTION AND THE NATURE OF EVIDENCE: THE
SCIENTIFIC INVESTIGATIONS OF POE, DICKENS AND DOYLE 25 (2003).
84. Lindsay Farmer, Arthur and Oscar (and Sherlock): The Reconstructive Trial and the
“Hermeneutics of Suspicion,” 5 INT’L COMMENT. ON EVID. Article 4, at 7 (2007).
85. See GILLIAN BEER, FORGING THE MISSING LINK: INTERDISCIPLINARY STORIES 8 (1991);
STEPHEN KERN, A CULTURAL HISTORY OF CAUSALITY: SCIENCE, MURDER NOVELS, AND SYSTEMS
OF THOUGHT 6 (2004); GEORGE LEVINE, DARWIN AND THE NOVELISTS: PATTERNS OF SCIENCE IN
VICTORIAN FICTION 1 (1991).
86. Similarly, Christopher Pittard notes that when it began publication in the 1890s, “the Strand
rapidly became appreciated for two particular genres. One was popular science writing; the other was
crime and detective fiction.” Christopher Pittard, From Sensation to the Strand, in A COMPANION TO
CRIME FICTION 105 (Charles J. Rzepka & Lee Horsley eds., 2010).
87. Irving Browne, Detective Stories, 6 GREEN BAG 433, 433 (1894).
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362 Yale Journal of Law & the Humanities [Vol. 23:339
than any other kind of story.”88
R. Austin Freeman, a pioneer in the
development of the forensic detective story, offered one of the definitive
accounts of the intellectual pleasures of detective fiction when he
remarked in 1924 that the “connoisseurs [of the detective story,] who read
it with close and critical attention, are to be found among men of the
definitely intellectual class: theologians, scholars, lawyers, and to a less
extent, perhaps, doctors and men of science.”89
What these professions
share, Freeman added, is a penchant for
find[ing] . . . pleasure in intricate arguments, in dialectical contests,
in which the matter to be proved is usually of less consideration than
the method of proving it. The pleasure is yielded by the argument
itself and tends to be proportionate to the intricacy of the proof. . . .
[T]he satisfaction yielded by an argument is dependent upon a strict
conformity with logical methods, upon freedom from fallacies of
reasoning, and especially upon freedom from any ambiguities as to
the data.90
Albert S. Osborn, perhaps the leading American student of forensic
evidence in the early twentieth century, recommended “the reading of
good detective stories” as a method of “stimulating the faculties of
observation, [and] for the study of methods by which correct inferences
are drawn from the most obscure facts.”91
The detective story, according
88. George Jean Nathan, Business Men’s Novels, 30 THE BOOKMAN 132, 134 (1909) (internal
quotation marks omitted); see also Grace Isabel Colbron, The Reading Zones of the United States, 36
THE BOOKMAN 148, 148 (1912) (“Detective stories seem to make their strongest appeal to the retired
lawyer and that individual familiar to the theatrical manager as the ‘tired business man.’ Now this
Tired Business Man and the Re-Tired Lawyer abound mostly in cities and residential suburbs around
the large cities. Such localities, therefore, offer a steady market for stories of crime and detection.”);
Charles Phelps Cushing, Who Writes These Mystery Yarns?: The Great Detective Solves Another
Puzzle, 118 INDEPENDENT 382, 383 (1927) (discussing doctors and lawyers as mystery writers and
noting that “[n]early every writer of the lot qualifies to do expert diagnosis and analysis because his
mind was trained for such work in the profession he once followed or continues to follow.”).
89. Freeman, The Art of the Detective Story, supra note 69, at 11.
90. Id. at 11-12. Freeman dwells at length on the “intellectual satisfaction[s]” of detective stories,
observing that they “deman[d] the power of logical analysis and subtle and acute reasoning” and offer
“an exhibition of mental gymnastics in which [the reader] is invited to take part.” Id. at 11. Freeman’s
own novels were similarly praised on the ground that “a teacher might be tempted to use them as
problems in applied logic.” John Adams, Mr. R. Austin Freeman, 44 THE BOOKMAN 6, 7 (1913).
91. ALBERT S. OSBORN, THE PROBLEM OF PROOF: ESPECIALLY AS EXEMPLIFIED IN DISPUTED
DOCUMENT TRIALS 423-24 (1922). This point was singled out for praise in a review by Frank J.
Loesch in the Illinois Law Review. See 17 ILL. L. REV. 628, 629 (1922-23); see also Charles C.
Butler, Laying Foundation for a Legal Career, 7 A.B.A. J. 539, 539 (1921) (“Whatever may be said
in jest about Holmes, Dupin and Lecoq, they do emphasize the importance of close observation and
attention to details. In a law suit, something that may be overlooked entirely by the inattentive, or that
to the careless observer may appear to be too trifling to merit consideration, may prove at the trial to
be an important and perhaps even the determining factor in the case.”).
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to these commentators, was the perfect form of recreational reading for
lawyers, apt to entertain while also cultivating analytical skills.92
Comparing Langdell’s pedagogical innovations with the tactics that
mystery writers were beginning to explore, we may say that what law
students learn through the case method is how to read legal clues, and
how to recognize various elements of the opinion as clues that can serve
an instrumental function.93
If the clue is the significant detail that does not
come into visibility until an expert recognizes and interprets it, the case
method is a procedure for training students to become experts in this
fashion, fixing on the facts that will take on legal significance. That these
skills resemble those of the detective finds striking confirmation in a
recent study of the reading strategies exhibited by successful law students.
A study by Leah Christenson of high-achieving and low-achieving firstyear
students showed that the first group, while reading an opinion for the
first time, “talked back to the text, made predictions, hypothesized about
meaning, and connected to purpose.”94
These students’ explanations for
engaging dynamically with the text showed that they sought to “account
for the author’s purpose, context and effect on the audience.”95
The lowachieving
students, by contrast, moved through the opinion in a more
linear fashion without attending to its functions or goals. These students
used strategies such as “paraphrasing, rereading, . . . underlining text, and
making margin notes,” but tended to focus on minutiae instead of the big
picture, and to push ahead when confused instead of trying to resolve their
92. Thus Eugene Wambaugh, author of THE STUDY OF CASES: A COURSE OF INSTRUCTION IN
READING AND STATING REPORTED CASES (Boston, Little, Brown, and Company 1891), could include
a number of detective stories in his article Light Reading for Law Students, 2 LAW BULL. ST. UNIV.
IOWA 28 (1893); see also Browne, supra note 87, at 433 (recommending detective stories to “the
lawyer on vacation”).
93. Though Langdell and his case-method cohorts did not characterize their approach as a form
of training in the observation of legal clues, even this terminology would eventually find a place in
legal analysis. Allen-West Comm’n Co. v. Grumbles, 129 F. 287, 294-95 (8th Cir. 1904) (“The clew
to the labyrinth of decisions upon this subject is the reason of the rule which makes delivery of the
thing . . . indispensable to the validity of the gift.”); Trust Co. of Ga. v. State, 35 S.E. 323, 327 (Ga.
1900) (“This decision . . . gives the clew by which apparent conflict of authorities on this subject may
be reconciled”). Similarly, Hohfeld treated legal analysis as a search guided by clues: “[W]hat clue do
we find, in ordinary legal discourse, toward limiting the word [‘right’] to a definite and appropriate
meaning? That clue lies in the correlative ‘duty.’” Wesley Newcomb Hohfeld, Fundamental Legal
Conceptions, 23 YALE L.J. 16, 31 (1913).
94. Leah M. Christenson, Legal Reading and Success in Law School: An Empirical Survey, 30
SEATTLE U. L. REV. 603, 609 (2007) (citing Laurel C. Oates, Beating the Odds: Reading Strategies of
Law Students Admitted Through Alternative Admissions Programs, 83 IOWA L. REV. 139, 159-60
(1997)).
95. Id. (quoting Dorothy H. Deegan, Exploring Individual Differences Among Novices Reading
in a Specific Domain: The Case of Law, 30 READING RES. Q. 154, 161 (1995)).
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364 Yale Journal of Law & the Humanities [Vol. 23:339
confusion. The low-achieving students did poorly because they tried to
make do with “accessible and familiar . . . reading strategies [that they
had] used earlier in their academic careers.”96
The questions posed by the
high-achieving students find a perfect match in a recent description of the
kind of attention that detective fiction demands from its readers: “[T]here
is always the question whether we have understood a given situation,
event, action or statement correctly” and “whether we have correctly
recognized what information is salient.”97
The reader must “contextualize
any particular event or action as a (potential) part of . . . an action of large
scale.”98
If case-method teaching aims in part to keep students focused on the
relation between specific doctrinal details and the large-scale questions
about what purposes the doctrine serves, this goal might also be
understood as a way of instructing students about what counts as a red
herring. In detective fiction, this device is a sine qua non: there would be
no engaging problem, no multiplicity of arrays for readers to project, no
opportunity to match wits with the detective, if all the clues pointed in the
same direction or pointed nowhere. The genre requires an excess of
plausible suspects and some misleading clues if the reader is to enjoy the
challenge.99
Red herrings in this sense have no place in legal judgments.
When judges are accused of including misleading information in their
opinions, the details in question have been selected because they support
the judge’s reasoning, not because they might prevent the reader from
predicting the outcome. Thus if the analogy has any application here, it is
only because, as Christensen’s study shows, someone who is learning
how to read a judgment can find it hard to separate the important details
from the irrelevant ones, the ratio from the dicta. As noted earlier, the
premium in the law school classroom is not on producing ever-more
96. Id.
97. Deborah Knight & George McKnight, The Case of the Disappearing Enigma, 21 PHIL.
& LIT. 123, 124 (1997).
98. Id.
99. Surprisingly, this requirement rarely appeared on the lists of “rules” for writing detective
fiction that were being produced in the 1920s. In lavishing their attention on “fair play,” the rulemakers
evidently assumed that writers could be trusted, without any need for encouragement, to do
whatever they could to bamboozle the reader. R. Austin Freeman is typical in this regard, insisting
that the incriminating clues “should be produced as inconspicuously as possible, but clearly and
without ambiguity in regard to their essentials.” Freeman, supra note 69, at 14. He notes only in
passing that in some detective fiction, there is “a succession of false clues,” with “the fixing of
suspicion first on one character, then on another, . . . and so on.” Id. Similarly, I.C. Cummings’s
assertion that no valuable clue will emerge until more than halfway through the novel, see text
accompanying note 66, suggests that an abundance of false clues would inevitably prevail.
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2011] Stern 365
nuanced explanations of the court’s reasoning but on ferreting out
concepts that can provide the backbone for a proper understanding of the
doctrine. The process of learning this skill is one that many first-year law
students find brutalizing. When students defend the farmer who did not
bargain in advance for a liquidated damages clause, they are now told that
the coal company need not pay to restore his strip-mined land to its
previous state because such a requirement, rather than generating a rule
that could help future parties to guide their conduct, instead has the effect
of discouraging strip-mining altogether.100
Subtleties that illuminate the
parties’ motives while failing to provide such guidance are dismissed as
observations that lead nowhere. Students thus learn that only certain kinds
of details, and the conclusions they support, produce legal narratives
worth telling, and that stories failing to satisfy those requirements are
deemed unnarratable.
The view of legal analysis as detection was not a new innovation
produced by the case method; rather, the case method developed and
extended a view that had already been articulated but whose
manifestations in Anglo-American legal thought had been limited and
intermittent up to the later nineteenth century.101
The language of
deduction and induction had long played a role in legal opinions and
commentaries on legal education,102
but the case method refined this
understanding of legal analysis and produced lawyers for whom these
procedures would become second nature. When Justice Story observed in
1842 that legal decisions are not themselves laws but “are, at most, only
evidence of what the laws are,”103
he was echoing a view that had been
put forth in earlier centuries by Coke, Hale, and Blackstone—but Story’s
point, like theirs, was that because such decisions are not laws, they are
100. Peevyhouse v. Garland Coal & Mining Co., 382 P.2d 109 (Okla. 1960). For discussions of
students’ sympathetic reactions to the plaintiffs’ plight, see, for example, ROBIN WEST, CARING FOR
JUSTICE 53-54 (1997); Judith L. Maute, Peevyhouse v. Garland Coal Co. Revisited: The Ballad of
Willie and Lucille, 89 NW. U. L. REV. 1341, 1427 (1995); and David McGowan, Judicial Writing and
the Ethics of the Judicial Office, 14 GEO. J. LEGAL ETHICS 509, 569-70 (2001).
101. See, e.g., Harold J Berman & Charles J. Reid, Jr., The Transformation of English Legal
Science: From Hale to Blackstone, 45 EMORY L.J. 437, 499-500 (1996); Paul H. Kocher, Francis
Bacon on the Science of Jurisprudence, 18 J. HIST. IDEAS 3 (1957); Schweber, Before Langdell, supra
note 36, at 611.
102. See, e.g., Daniel R. Coquillette, “The Purer Fountains”: Bacon and Legal Education, in
FRANCIS BACON AND THE REFIGURING OF EARLY MODERN THOUGHT 145, 158 (Julie Robin Solomon
& Catherine Gimelli Martin eds., 2005); Charles Barzun, Common Sense and Legal Science, 90 VA.
L. REV. 1051, 1073-88 (2004).
103. Swift v. Tyson, 41 U.S. (16 Pet.) 1, 18 (1842).
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366 Yale Journal of Law & the Humanities [Vol. 23:339
not binding and therefore may be set aside when deemed erroneous.104
They were “only evidence” in the same sense that circumstantial evidence
may be suggestive but not incontrovertible.
By the early twentieth century, however, this statement could become a
motto justifying the view that decisions must be examined to discover the
underlying principles on which they rely. Roscoe Pound, writing in 1903,
discussed the growth of the “scientific movement” in legal education and
recommended the study of cases instead of treatises because “law is to be
learned better by studying the authorities in which it is expressed than by
reading about them,” and so even “[i]f, as is sometimes said, the cases are
only evidence of the law, nevertheless they are the best evidence.”105
Pound might seem to be saying that cases are closer to the source, or are
more informative than treatises, but in explaining why law is learned
better this way, he adds that law professors must “teach . . . principles that
lie deeper” than the lessons available through “dogmatic instruction in the
law.”106
This explanation suggests that in serving as evidence, cases lead
us to fundamental principles that would not otherwise be available.
Dogmatic instruction would miss them by adhering to the explicitly stated
doctrine, skating along the surface rather than plumbing the depths. On
this view, cases are the best evidence because when probed carefully, they
can tell us more than a summation or description would convey. The view
of the early common lawyers may have been amenable to the detective
104. Story’s concern in Swift was to demonstrate that in diversity cases, the federal courts may
develop a common law based on fundamental legal principles, without attending to common-law
decisions of state courts; hence the state court decisions were to be regarded as “only evidence” of
those principles and not as binding law. Coke wrote that “our Booke Cases are the best proofes what
the Law is.” EDWARD COKE, THE FIRST PART OF THE INSTITUTES OF THE LAWS OF ENGLAND bk. 3, §
420, at 254 (1628). Hale observed that “[judicial] Decisions are less than a Law, yet they are a greater
Evidence thereof, than the Opinion of any private Persons.” MATTHEW HALE, THE HISTORY OF THE
COMMON LAW OF ENGLAND 68 (1713). In the same passage, Hale explained that “the Decisions of
Courts of Justice . . . do not properly make a Law so called” and are binding only “as to the particular
Case in Question, till revers’d by Error or Attaint.” Id. Blackstone similarly remarked that “judicial
decisions are the most authoritative evidence, that can be given, of the existence of such a custom as
shall form a part of the common law,” and he added that while “it is an established rule to abide by
former precedents,” the rule “admits of exception, where the former determination is most evidently
contrary to reason, much more if it be contrary to the divine law.” 2 WILLIAM BLACKSTONE,
COMMENTARIES 69-70; see also id. at 71, 72.
105. ROSCOE POUND, THE EVOLUTION OF LEGAL EDUCATION 13 (1903); see also Theodore
Albert Schroeder, Due Process of Law and Constructive Crimes, 42 AM. L. REV. 369, 373 (1908)
(quoting Story’s observation in Swift v. Tyson, supra note 103, after remarking that “[j]ust as the laws
of mathematics are not created by the mathematicians, nor the physical laws by the physicists, who
discover or make formal statements of them, . . . so the laws—the real laws—of a state are never
products of judicial cerebration. All laws are presuppositions which make our thinking about them,
and statement of them, possible.”).
106. POUND, supra note 105, at 14-15,.
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approach, but the case method actively promoted it.
On occasion even jurists have acknowledged—if only jokingly—the
relationship between the detective story and the structure of the legal
opinion. In 1989, Justice White rejected a proposed draft opinion in
Patterson v. McLean Credit Union107
because the procedural solution
trotted out at the end was “as unsatisfying as the conclusion of a bad
mystery novel.”108
White mockingly complained that the draft violated the
readers’ expectations: “[W]e learn on the last page that the victim has
been done in by a suspect heretofore unknown, for reasons previously
unrevealed.”109
This description, however sardonic, emphasizes that the
rules of “fair play” in detective fiction and opinion-writing alike require
that the clues establishing a foundation for the outcome must be planted
early, that the reader must have the opportunity to observe and consider
them, and that they must be sufficient to account for the solution without
resort to additional information that has been strategically withheld.
Fictional detectives have also figured more explicitly in judicial
decisions, and their own theories have thereby been assimilated into the
principles of legal reasoning. Less than fifteen years after the Strand
Magazine began publishing the Sherlock Holmes stories serially in
1891,110
Doyle’s detective made his first appearance in a legal opinion
and was soon being invoked regularly by judges as an emblem of
ratiocinative prowess.111
More recently, the legal obsession with sleuths
107. 491 U.S. 164 (1989).
108. Joan Biskupic, Racial Harassment Case Marked End of Liberal Bent on Civil Rights,
BUFFALO NEWS, June 1, 1993, at A6.
109. Id. In a related context, John Leubsdorf notes that decisions in criminal cases sometimes
model the narration of facts on the detective story. John Leubsdorf, The Structure of Judicial
Opinions, 86 MINN. L. REV. 447, 458 (“A judge deciding to uphold a conviction will tell a detective
story, as seen from the point of view of the detective who ultimately succeeds in tracking down proof
of guilt.”); see also Arvida Corp. v. A.J. Indus., 370 So. 2d 809, 812 (Fla. Dist. Ct. App. 1979)
(Baker, J., concurring) (characterizing a case involving defective merchandise as a “whodunit” and
concluding with the rhetorical question, “isn’t it nice to have a mystery story that not only comes to
the right conclusion but the one that was expected?”).
110. The first Holmes story was the novel-length A Study in Scarlet, published in Beeton’s
Christmas Annual in November 1887, but it was only after Doyle started publishing the Sherlock
Holmes stories in the Strand that the detective became popular.
111. Putting aside an intellectual property dispute over the name “Sherlock Holmes” in Illinois
state court in 1902-03, the first opinion to refer to the detective is People v. Buckley, 87 N.Y.S. 191
(N.Y. App. Div. 1904) (comparing the code used by the defendant to “the cipher solved by Sherlock
Holmes . . . [in] ‘The Dancing Men’”). The first U.S. decision to refer to Holmes’s deductive abilities
is State v. Claybaugh, 122 S.W. 319, 321 (Mo. Ct. App. 1909) (describing a party’s effort to recapture
his stolen turkeys as exhibiting “a sort of Sherlock Holmes process of deduction”). The earliest
reference to Sherlock Holmes in a British decision appears in Pells & Son v. Port of London Auth.,
[1920] 2 Ll. L. Rep. 327 (“[O]ne of the gentlemen concerned . . . dealt with it rather on the lines of
Sherlock Holmes’ methods, for by scraping paint off the side of the bracket he found it was like that
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368 Yale Journal of Law & the Humanities [Vol. 23:339
and their puzzle-solving abilities has found expression in doctrinal
analysis. Several courts have taken up Sherlock Holmes’s axiom that
“when you have eliminated the impossible, whatever remains, however
improbable, must be the truth.”112
Holmes’s observation about the
“curious incident of the dog in the night-time” emerged as a canon of
statutory construction in the 1980s,113
having already been cited
frequently for its propositional logic during the preceding thirty years.114
on the mark.”). The earliest Canadian reference appears in Moyer v. Moyer, [1940] O.W.N. 113, 113
(Ont.) (“[A]n ordinary detective put on a divorce case would probably obtain results in about six
months. A Sherlock Holmes might probably secure his evidence in three.”).
112. The axiom has found more favor in the United States than in Canada. Judge Southin rejected
“this well-known but unjudicial dictum” in McPhee v. British Columbia (Ministry of Transp.) [2005],
38 B.C.L.R. 4th 328 para. 20 (B.C.). For U.S. decisions endorsing the proposition, see, for example,
Bammerlin v. Navistar Intern. Transp. Corp., 30 F.3d 898, 902 (7th Cir. 1994) (Easterbrook, J.);
Walgreen Co. v. N.L.R.B., 509 F.2d 1014, 1021 (7th Cir. 1975) (Pell, J., dissenting); Pafford ex rel.
Pafford v. Sec’y of Dept. of HHS, 64 Fed. Cl. 19, 21 (Fed. Cl. 2005); and Williams v. State, 437 A.2d
665, 667 n.1 (Md. App. 1981).
113. This interpretive touchstone seems to have been proposed first by Chief Justice Rehnquist in
dissent, in Harrison v. PPG Industries, Inc., 446 U.S. 578 (1980), provoking a rebuttal in Justice
Stewart’s opinion for the Court. Within a decade, what had been rejected as “strange” was a matter of
orthodoxy. See Church of Scientology of California v. I.R.S., 484 U.S. 9, 17-18 (1987) (Rehnquist,
C.J.) (“[T]his is a case where common sense suggests, by analogy to Sir Arthur Conan Doyle’s ‘dog
that didn’t bark,’ that an amendment having the effect petitioner ascribes to it would have been
differently described by its sponsor, and not nearly as readily accepted by the floor manager of the
bill.”); Harrison, 446 U.S. at 596, 602 (Rehnquist, C.J., dissenting) (“Congress’ additions to [the
statute under review are] no less curious than was the incident in the Silver Blaze of the dog that did
nothing in the nighttime”; “I think judges as well as detectives may take into consideration the fact
that a watchdog did not bark in the night.”); id. at 592 (Stewart, J.) (“[I]t would be a strange canon of
statutory construction that would require Congress to state . . . that which is obvious on the face of a
statute. In ascertaining the meaning of a statute, a court cannot, in the manner of Sherlock Holmes,
pursue the theory of the dog that did not bark.”). This line of thought was anticipated by Judge Tamm
in a 1975 opinion. See Palmore v. Superior Court of District of Columbia, 515 F.2d 1294, 1311 &
n.44 (D.C. Cir. 1975) (en banc) (“We find the congressional silence, when contrasted with the
extended constitutional debates over other proposals, both ‘curious’ and significant.”) (citing ARTHUR
CONAN DOYLE, Silver Blaze, in THE COMPLETE SHERLOCK HOLMES 347 (1930)). The canon
continues to meet with opposition. See, e.g., Chisom v. Roemer, 501 U.S. 380, 406 (1991) (Scalia, J.,
dissenting) (“Apart from the questionable wisdom of assuming that dogs will bark when something
important is happening . . . . Statutes are the law though sleeping dogs lie.”). On the canon more
generally, see WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 220-21, 325
(1994). See also Com. v. Marshall, 81 Mass. 202, 205 (1860) (asserting that the watchdog’s failure to
bark did not prove that barn fire was not caused by arson, because “persons desiring to keep
themselves concealed, or to go where they would be sure not to be noticed by the dog, might reach
[the barn] without difficulty in boats across the water near to which it was situate. Under such
circumstances, certainly the quiet and silence of the dog was utterly without significance”).
114. Burgess v. M/V Tamano, 564 F.2d 964, 977 (1st Cir. 1977) (“[P]laintiffs [have not]
responded . . . to the silence of the Pilots themselves, who are faced not with a hypothetical, but the
hard reality of a vital mark about which they did not complain. We are here reminded of Sherlock
Holmes’ dog in the nighttime, the significance of which was that he did not bark.”); In re Nissen 146
F.Supp. 361, 362-63 (D. Mass. 1956) (“I was impressed by the absence of judicial expression of what
the word [‘training’] meant. . . . [I]t seems to have been overlooked altogether. I am reminded of
Sherlock Holmes’ observation of the significance of the dog’s activity in the nighttime—viz., that it
did nothing.”); People v. Blakeslee, 82 Cal. Rptr. 839, 844 (Cal. App. 1969) (“The absence of
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The forensic parable of the non-barking dog and the critique of the
opinion that ends like a “bad mystery” are symptoms of a much larger set
of assumptions, techniques, and goals that the detective story shares with
the case method. Implicit in White’s joke is the recognition that the
detective story is a popular cultural form—an aesthetic form—that
accustoms readers to a particular structure for the positing, analysis, and
resolution of problems. Whether or not they are aware of it, readers who
have come to find that mode of problem-solving satisfying are likely to
apply the same expectations to problems in other contexts, and to judge
the effectiveness of the solution according to the same aesthetic criteria.
III. LAWYERING UP DETECTIVE FICTION
Having shown how legal decisions may borrow explicitly from
detective fiction, not only jocularly but also in the service of doctrinal
arguments, I now propose to reverse the terms and to ask what role
lawyers have played in detective stories—and more specifically, as
detectives in these stories. This focus serves to limit what would
otherwise be an impossibly wide inquiry, and also advances the argument
by shifting to some fictional manifestations of the links we have been
considering. The use of the lawyer as an expert whose skills are suited to
the needs of detection has figured in the genre almost from the beginning,
as the frequent use of lawyer-detectives attests. An exploration of lawyers
as detectives allows us to identify five points of connection that help to
explain the congruences in their fictional roles. First, writers often exploit
this connection simply because lawyers are specialists in the challenges
that the genre poses to its readers. Several of the other reasons for this
practice follow readily from the discussion above. Second, the lawyer’s
case and the detective’s case share a narrative form structured by the
movement from the specification of a problem to its resolution. Third,
besides the shared concerns of detective writers and criminal lawyers—
and more basically a common adversarial structure in detective fiction
evidence, like Sherlock Holmes’ curious incident of the dog in the nighttime which did not bark, may
have as great an impact on the substantiality of a case as any which is produced, for the absence of
evidence which would normally be forthcoming can undermine the solidity of the proof relied on to
support a finding of guilt.”); Whitehurst v. Bauer, 359 N.E.2d 1176, 1177 (Ill. App. 1977) (“the silent
horn (like the Sherlock Holmes dog who failed to bark in the night) might raise . . . an inference of
speed or failure to keep a proper lookout”); Bendetson v. Coolidge, 390 N.E.2d 1124, 1126 (Mass.
App. 1979) (“[L]ike the dog in the Sherlock Holmes story who did not bark, the papers are significant
for what they did not say.”); Walker v. Johnston, 236 S.W.2d 534, 542 (Tex. Civ. App. 1951)
(“Defendants’ failure to produce evidence reminds one of the ‘curious incident of the dog in the night
time.’”).
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370 Yale Journal of Law & the Humanities [Vol. 23:339
and legal disputes—we see an express assertion in detective fiction about
its concern with logical rigor, again pursued increasingly through the
narrative form, in the sense that the genre became more closely identified
with a plot structured entirely around the presentation and resolution of a
mystery. Finally, the fictional examples also bring out two new
implications, involving the kind of expertise that the detective displays
and the game-playing mentality these stories facilitate.
The use of lawyers in detective fiction dates back to the genre’s origins.
Anna Katharine Green’s The Leavenworth Case (1878), often described
as the first American mystery novel, conscripts an attorney into the role of
detective, as the book hints in its subtitle, A Lawyer’s Story.115
The figure
of the lawyer-detective flourished on both sides of the Atlantic during the
genre’s early years and found perhaps its fullest embodiment in Perry
Mason, whose adventures in print spanned the middle third of the
twentieth century.116
In 1987, the genre entered a new phase when Scott
Turow published the legal thriller Presumed Innocent.117
The last few
years have witnessed yet another variation on this theme as a series of law
professors have begun publishing mysteries.118
Early British contributions to the genre of “detective fiction” in the
sense of stories about detection, but without clues, include two series of
stories serialized in Chambers’s Edinburgh Journal as The Experiences of
a Barrister (1849-1850) and The Confessions of an Attorney (1850-52)119
(both later published together under the title The Lawyer Detective);120
a
115. ANNA KATHARINE GREEN, THE LEAVENWORTH CASE: A LAWYER’S STORY (New York,
G.P. Putnam’s Sons 1878). For more on the status of The Leavenworth Case as the first American
detective novel, see infra note 127.
116. Anita Sokolsky, The Case of the Juridical Junkie: Perry Mason and the Dilemma of
Confession, 2 YALE J.L. & HUMAN. 189 (1990).
117. SCOTT TUROW, PRESUMED INNOCENT (1987).
118. See, e.g., LORI ANDREWS, SEQUENCE (2006); JAMES BOYLE, THE SHAKESPEARE
CHRONICLES (2006); ALAFAIR BURKE, CLOSE CASE (2005); JED RUBENFELD, THE INTERPRETATION
OF MURDER (2006); MARIANNE WESSON, CHILLING EFFECT (2005).
119. The stories were published anonymously but when published in book form in 1852 were
attributed to Samuel Warren. There is some dispute about the attribution. Heather Worthington, in the
most intensive study of the stories to date, concludes that “it [is] unlikely that Samuel Warren was
their author,” but adds that Warren’s earlier “criminographic writing was paradigmatic for the later
populist legal anecdotes [retailed in the stories].” HEATHER WORTHINGTON, THE RISE OF THE
DETECTIVE IN EARLY NINETEENTH-CENTURY POPULAR FICTION 74 (2005). For a useful overview on
Warren’s fiction and these two series of tales, see id. at 46-102, 105-06. For other discussions, see
Bege K. Bowers, Samuel Warren, in BRITISH REFORM WRITERS, 1832-1914, at 334-38 (Gary Kelly &
Edd Applegate eds., 1998); and C.R.B. Dunlop, Samuel Warren: A Victorian Law and Literature
Practitioner, 12 CARDOZO STUD. L. & LIT. 265 (2000). On Warren’s contribution to the genre of the
medical case history, see Meegan Kennedy, The Ghost in the Clinic: Gothic Medicine and Curious
Fiction in Samuel Warren’s Diary of a Late Physician, 32 VICTORIAN LIT. & CULTURE 327 (2004).
120. THE LAWYER-DETECTIVE, OR, TWENTY-TWO CELEBRATED CRIMINAL CASES UNRAVELED
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number of stories by Wilkie Collins, including A Stolen Letter (1854),
which features the crafty young lawyer Mr. Boxsious as detective; A Plot
in Private Life (1858), in which the attorney Mr. Dark is the sleuth; The
Biter Bit (1858), in which a young lawyer’s clerk, Matthew Sharpin,
proves anything but sharp and completely bungles the investigation; and a
novella, My Lady’s Money (1878), in which a disbarred attorney named
Old Sharon solves the mystery as much through luck as his own effort.121
Other Victorian examples include William Russell’s Leaves from the
Diary of a Law Clerk (1857) and Mary Elizabeth Braddon’s Lady
Audley’s Secret (1862), in which Robert Audley begins as a languid,
lackadaisical aristocrat and through his work as a detective is transformed
into a successful barrister who, when last seen, has “distinguished himself
in the great breach of promise case of Hobbs v. Nobbs.”122
The New
Zealand-born writer Fergus Hume produced “the first best-selling crime
fiction mystery novel in English”123
with The Mystery of a Hansom Cab
(1886), in which the crime is solved by Mr. Calton, “one of the leading
lawyers of the city.” The “clue-puzzle” story, once it took hold, also had a
place for the lawyer-detective, as may be seen in Arthur Morrison’s
stories in the Strand Magazine about Martin Hewitt (1894-1903),124
R.
Austin Freeman’s stories about John Thorndyke (1909-42), Baroness
Orczy’s Patrick Mulligan in Skin O’ My Tooth (1928), and Cyril Hare’s
(Loyd 1887).
121. A Stolen Letter (published in Dickens’s Household Words in 1854; collected in Collins’s
After Dark and Other Stories, 1856) recalls Poe’s The Purloined Letter in many respects, except that
in Collins’s story, the letter is concealed under the floor and its hiding place must be discovered. For
more on Collins, see Robert P. Ashley, Wilkie Collins and the Detective Story, 6 NINETEENTHCENTURY
FICTION 47 (1951).
122. For a critical discussion of this transformation, see Vicki A Pallo, From Do-Nothing to
Detective: The Transformation of Robert Audley in Lady Audley’s Secret, 39 J. POPULAR CULTURE
466 (2006).
123. STEPHEN KNIGHT, CRIME FICTION, 1800-2000: DETECTION, DEATH, DIVERSITY 52 (2004).
Hume’s thriller was first published in Melbourne in 1886; it was the 1887 London edition that
achieved best-sellerdom. Id.
124. ARTHUR MORRISON, ADVENTURES OF MARTIN HEWITT. THIRD SERIES (1896); THE
CHRONICLES OF MARTIN HEWITT, INVESTIGATOR (1895); THE RED TRIANGLE, BEING SOME
FURTHER CHRONICLES OF MARTIN HEWITT, INVESTIGATOR (1903); MARTIN HEWITT, INVESTIGATOR
(1894). Knight observes that “Morrison made his detective start as a young law clerk, rather like one
of the humble investigators of the 1850s stories, but his success led him to set up as a private
detective, working entirely on his own.” KNIGHT, supra note 123, at 74. Doyle’s Sherlock Holmes
stories were also appearing in the Strand Magazine at the same time, and there can be little doubt that
Morrison took his inspiration from Doyle, though Hewitt is described as having a very different
personality and appearance. “As Bleiler remarks, ‘Hewitt is obviously based on Sherlock Holmes via
the identity of opposites’ . . . . Hewitt is plump, pleasant, low-key, and co-operates readily with the
police.” Id. (quoting E.F. Bleiler, Introduction to ARTHUR MORRISON, TALES OF MEAN STREETS, at
xiii (1976) (1895)).
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372 Yale Journal of Law & the Humanities [Vol. 23:339
novels featuring Francis Pettigrew (1942-58).125
On the American side, Metta Fuller Victor included a lawyer-detective
in The Dead Letter (1866)126
a dozen years before Green’s The
Leavenworth Case, though Fuller’s use of psychic powers as a tool in
solving the mystery has led some scholars to question the book’s status as
a detective story.127
Green’s novel was a popular and critical success,128
and it so fascinated British constitutional lawyer A.V. Dicey that he went
out of his way to meet her after a visit to Harvard in 1898.129
Green went
on to become a prolific mystery-writer, and included another lawyer in
Hand and Ring (1883)—this time as culprit.130
Following Green’s
success, the American lawyer-detective became a familiar figure from
Harry Rockwood’s Abner Ferret, the Lawyer Detective (1883), Melville
Davisson Post’s three collections of Randolph Mason stories (1896-1907),
Harvey Scribner’s My Mysterious Clients (1900), Frederick Hill’s The
Case and Exceptions: Stories of Counsel and Clients (1900), Burton
Stevenson’s The Holladay Case (1903), Richard Marsh’s A Case of
125. The novels featuring Pettigrew as a lawyer-detective began with CYRIL HARE, TRAGEDY AT
LAW (1942) and ended with HARE, HE SHOULD HAVE DIED HEREAFTER (1957).
126. METTA FULLER VICTOR, THE DEAD LETTER (1866). Victor’s second mystery novel, THE
FIGURE EIGHT (1869), features a doctor as detective.
127. See CATHERINE ROSS NICKERSON, THE WEB OF INIQUITY: EARLY DETECTIVE FICTION BY
AMERICAN WOMEN 29 (1998) (“as far as anyone can be certain about ‘firsts’ in American publishing,
The Dead Letter, published in book form in 1866, is the first American detective novel.”); Jennifer
Murphy McCollum, “A Quietus and a Kiss”: Anna Katharine Green and the Criminal Romance 8-11
(2000) (unpublished Ph.D. dissertation) (on file with UNC-Greensboro) (discussing the controversy
and noting that some of the detection in The Dead Letter is “impure” because Victor uses “psychic
abilit[ies] . . . [as] sleuthing skills”) (citing WILLIAM L. DEANDREA, ENCYCLOPEDIA MYSTERIOSA
300 (1994)); see also Catherine Ross Nickerson, Introduction to METTA FULLER VICTOR, THE DEAD
LETTER & THE FIGURE EIGHT 1, 3 (Duke Univ. Press, 2003) (“[Victor] takes the apparatus of the
detective story Poe set forth in the ‘tales of ratiocination’ of the 1840s . . . and expands it into a fulllength
novelistic form.”).
128. PATRICIA D. MAIDA, MOTHER OF DETECTIVE FICTION: THE LIFE AND WORKS OF ANNA
KATHARINE GREEN 4 (1989).
129. See ALBERT VENN DICEY, MEMORIALS OF ALBERT VENN DICEY 146 (1925) (describing
how, in 1898, after giving a series of lectures at Harvard, Dicey “called upon Mrs. Rolphs [sic] (Anna
Katherine Green), whose story, The Leavenworth Case, had appealed so strongly to his interest in
detective stories that he was determined not to visit America without seeing her. . . . The incident was
the beginning of a friendship, and Mrs. Rolphs dedicated a novel to him.”). The book that Green
dedicated to Dicey is Agatha Webb. Green also maintained a correspondence with Oliver Wendell
Holmes. See Letter from Oliver Wendell Homes to Anna Katherine Green Rolphs (on file with the
Harvard Law School Library, Oliver Wendell Holmes Papers, 49-19). See also Paul Woolf, When
Arthur Met Anna: Arthur Conan Doyle and Anna Katharine Green, 8 SYMBIOSIS 177 (2004)
(discussing Green and A.C. Doyle).
130. Green was the daughter of a criminal defense attorney and she occasionally offered her own
views on prominent cases. See Anna Katharine Green, A Fictionist Faces Facts, FALL RIVER DAILY
HERALD, August 22, 1892, at 4 (cited in Cara W. Robertson, Representing Miss Lizzie, 8 YALE J.L. &
HUMAN. 351, 352 n.8) (arguing that Lizzie Borden was not guilty of killing her parents); see also
Anna Katharine Green, Why Human Beings Are Interested in Crime, 87 AMERICAN MAG. 38 (1919).
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Identity (1908), Henry Kitchell Webster’s The Whispering Man (1908),
Jean Webster’s The Four-Pools Mystery (1908), Carolyn Wells’s The
Clue (1909), Richard Noyes Hart’s The Bellamy Trial (1927), and J. Lane
Linklater’s Hugo Oakes, Lawyer-Detective (1930-34)—not to mention
Erle Stanley Gardner’s Perry Mason stories (1933-68),131
which, along
with the television series they spawned, have given Mason a prominence
in the corpus of legal opinions that rivals that of Sherlock Holmes.132
The advent of the lawyer-detective in the late nineteenth century is
particularly notable given that it occurs (at least on the American side)
after the end of what Robert Ferguson has described as the “configuration
of law and letters that dominated American literary aspirations from the
Revolution until the fourth decade of the nineteenth century” and the
beginning of a period of “collective, specialized inquiry.”133
The
131. See David Ray Papke, Lawyer Fiction in the Saturday Evening Post: Ephriam Tutt, Perry
Mason and Middle-Class Expectations, 13 CARDOZO STUD. L. & LIT. 207 (2001); Anita Sokolsky,
The Case of the Juridical Junkie: Perry Mason and the Dilemma of Confession, 2 YALE J.L. &
HUMAN. 189 (1991). Other early examples include: LE JEMLYS [pseud.], LAWYER MANTON OF
CHICAGO: A DETECTIVE STORY OF THRILLING INTEREST (Chicago, Eagle Publishing Co., 1888);
EDWARD JENKINS, A WEEK OF PASSION, OR THE DILEMMA OF MR. GEORGE BARTON THE YOUNGER
(London, Remington & Co., 1884); ROBERT MCCURDY, THE UPAS TREE (1913); MELVIN SEVERY,
THE MYSTERY OF JUNE 13TH (1905); BURTON E. STEVENSON, THAT AFFAIR AT ELIZABETH (1907);
MARK TWAIN, PUDD’NHEAD WILSON (New York, Harper & Brothers, 1890); and WILL WINCH, THE
LAWYER DETECTIVE (New York, Munro’s Publishing House, 1890). For useful overviews, see
Friedman & Rosen-Zvi, supra note 3; Marlyn Robinson, Collins to Gresham: A Brief History of the
Legal Thriller, 22 LEGAL STUD. F. 21 (1998).
132. While Perry Mason has not given rise to a doctrinal principle (such as the canon of the nonbarking
dog), he is arguably the forerunner of the “CSI effect,” which, according to some prosecutors,
has influenced jurors’ expectations about how trials proceed. See, e.g., State v. McKeough, 300 A.2d
755, 761 (Me. 1973) (“[Reasonable doubt] is not a doubt you go searching for or looking for. This is
not Perry Mason. Perhaps some of you have seen defendants stand right up and say ‘I did it’, or ‘I
didn’t do it’. Forget about that, that is for entertainment purposes, that doesn’t occur.”); State v.
Skjonsby, 319 N.W.2d 764, 787 (N.D. 1982) (“[W]hat you see on television isn’t exactly the way it
occurs, . . . this isn’t like a Perry Mason television [show] . . . . [S]omeone . . . will not get up and say,
‘I did it.’”); cf. Walker v. People, 458 P.2d 238, 244 (Colo. 1969) (“[T]he Post retained Erle Stanley
Gardner, the creator of the fictional Perry Mason, to assist the authorities in resolving the crime. From
then on it was labeled ‘The Case of the Shanghied Coed.’ Gardner’s purpose, as revealed in a Post
article, was as follows: ‘ . . . I am to try to present to readers of the Denver Post the situation as it
might appear to the eyes of Perry Mason, the fictional lawyer detective who has solved so many cases
in my books. We are not employed to solve the case but to give the authorities any assistance within
our power.”). On the CSI effect, see Tom Tyler, Viewing CSI and the Threshold of Guilt: Managing
Truth and Justice in Reality and Fiction, 115 YALE L.J. 1050 (2006).
133. ROBERT A. FERGUSON, LAW AND LETTERS IN AMERICAN CULTURE 5, 286 (1983). The same
cannot be said for British writers. John Sutherland, in a statistical survey of 878 Victorian novelists
(566 men and 312 women), finds that one in five of the men was a lawyer at some point, “and in the
vast majority of cases a failed barrister. ‘Called to the Bar but never practised’ is thus the commonest
prelude to a career in writing novels. And if one adds lawyer fathers (or, for women, lawyer
husbands) the coincidence of training in law with the Victorian novel is even more pronounced.”
JOHN SUTHERLAND, The Victorian Novelists: Who Were They?, in VICTORIAN FICTION: WRITERS,
PUBLISHERS, READERS 159, 170 (2d ed. 2006). Sutherland offers various practical reasons for the
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specialization to which Ferguson refers was part of a move towards
greater professionalization among lawyers, a move that also helps to
explain why they would have found the detective a particularly appealing
literary figure. The detective, too, was associated with
professionalization—of the police,134
and also of the forensic scientists
whose tools and techniques served as particularly powerful symbols of
precision, objectivity, and expertise.135
Sherlock Holmes, for example, is
first seen in a “chemical laboratory” filled with “retorts, test-tubes, and
little Bunsen lamps,” and in his first lines he reports the discovery of “a
re-agent which is precipitated by hæmoglobin and nothing else.”136
Landgell, as we have already seen, regarded the laboratory as the
archetypical home of the scientific virtues.
Given the form and focus of detective fiction and its association with
the scientific and rational study of crime, its appeal for members of the
legal profession was overdetermined. First and most obviously, lawyers
and writers of detective fiction converge over a common set of
concerns—crime, violence, deceit, and conflict. Though mystery stories
are not invariably about crimes, there can be no mystery without an event
that remains opaque as to its cause, and many crimes (especially murder)
conveniently fit that bill.137
Doyle took pains in several of the Sherlock
linkage and concludes by speculating that “there is probably an affinity between the mentalities of
jurisprudence and Victorian fiction, shaped as both were by the study of individual cases and the
canons of (poetic) justice.” Id. at 171.
134. See, e.g., Haia Shpayer-Makov, Journalists and Police Detectives in Victorian and
Edwardian England: An Uneasy Reciprocal Relationship, 42 J. SOCIAL HIST. 963 (2009).
135. See RONALD R. THOMAS, DETECTIVE FICTION AND THE RISE OF FORENSIC SCIENCE (1999).
For related discussions, see LAWRENCE FRANK, VICTORIAN DETECTIVE FICTION AND THE NATURE OF
EVIDENCE: THE SCIENTIFIC INVESTIGATIONS OF POE, DICKENS, AND DOYLE (2003); Joy Palmer,
Tracing Bodies: Gender, Genre, and Forensic Detective Fiction, 18 S. CENT. REV. 54 (2001); Joseph
Pugliese, ‘Super Visum Corporis’: Visuality, Race, Narrativity and the Body of Forensic Pathology,
14 LAW & LIT. 367 (2002); Mark Essig, Science and Sensation: Poison Murder and Forensic
Medicine in Nineteenth-Century America (2000) (unpublished Ph.D. dissertation) (on file with
Cornell University).
136. ARTHUR CONAN DOYLE, A STUDY IN SCARLET, in 3 THE NEW ANNOTATED SHERLOCK
HOLMES 20 (Leslie S. Klinger ed., 2005) (1887). For further discussion of this passage in relation to
the positivism of nineteenth-century forensic science, see D. Michael Risinger, Boxes in Boxes: Julian
Barnes, Conan Doyle, Sherlock Holmes and the Edalji Case, 4 INT’L COMMENT. ON EVIDENCE 3
(2006). On the nineteenth-century history of the problem that Holmes purports to solve, see TAL
GOLAN, LAWS OF MAN AND LAWS OF NATURE 144-75 (2004). Though Luminol and phenolphthalein
are now widely used to detect blood, they cannot distinguish between human and animal blood and
they also react to iron-based substances, rust, and horseradish. See Lisa Gefrides & Katie Welch,
Forensic Biology: Serology and DNA, in THE FORENSIC LABORATORY HANDBOOK: PROCEDURE AND
PRACTICE 15, 24-25 (Ashraf Mozayani & Carla Niziglia eds., 2d ed. 2011).
137. For a discussion of the murder mystery as a touchstone reflecting social beliefs about
causality, see KERN, supra note 85.
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Holmes stories to point out that a mystery does not require a crime,138
but
after Holmes’s resurrection in 1903,139
the stories focused increasingly on
murder, as did the whole genre by the 1920s.140
The adversarial structure,
in any case, is a constant in the detective story, insofar as the mystery
usually turns on a conflict between concrete parties—a conflict requiring
at least one of the parties to share her secrets with a professional who will
resolve the problem for her, often by standing in her place just as an
attorney would represent his client in court.141
Holmes himself appears to
recognize his lawyer-like role on occasion, as in The Mazarin Stone, when
he confers with a thug and invites the thug’s henchman to join them:
“After all, his interests should be represented.”142
In part, the conflation of lawyering and detecting merely signals the
mystery writer’s recognition that the lawyer’s needs often coincide with
the occasion for crime-solving, and that lawyer and detective may
perform overlapping functions in the same process.143
This mutual interest
in exonerating the innocent, for example, readily explains the lawyer’s
double duty in many of the stories, where the dual role serves no other
purpose than to streamline the plot and to simplify the cast of characters.
The frequency of lawyer-detectives in the years before 1890 testifies to
that need. This mutuality of interest also explains many of the decisions
referring to Sherlock Holmes, Perry Mason, and detectives generally in
the course of describing crimes, criminals, and their capture. The speed
with which the American courts started to mention Sherlock Holmes,
noted earlier, highlights that point.144
That the lawyer and detective are
often concerned with the same actors and conduct, then, provides one
explanation for the popularity of the lawyer-detective.
138. In The Blue Carbuncle, for example, Holmes observes that “of the last six cases which I
have added to my notes, three have been entirely free of any legal crime.” 1 DOYLE, supra note 136,
at 198.
139. The Adventure of the Empty House, in 2 id. 781
140. Moretti, Clues, supra note 47, at 136; Stephen Knight, The Golden Age, in THE CAMBRIDGE
COMPANION TO CRIME FICTION 77 (Martin Priestman ed., 2004).
141. For example, in The Adventure of the Speckled Band, Holmes and Watson occupy Helen
Stoner’s bedroom to assess the danger that threatens her life. 1 DOYLE, supra note 136, at 247.
142. Similarly, in The Boscombe Valley Mystery, Holmes says, “I understand that it was your
daughter who required my presence here, and I am acting in her interests.” 1 id. at 129. In The
Adventure of Charles Augustus Milverton, the blackmailer who gives his name to the story’s title
treats Holmes as if he were a lawyer, telling Holmes that “it is only in your client’s interests that I
protested.” 2 id. at 1011.
143. For some recent publications attesting to this convergence, see THE LAWYER AS DETECTIVE:
EFFECTIVE AND ETHICAL INFORMAL DISCOVERY (2005); and THE LAWYER AS DETECTIVE II: NONTRADITIONAL
DISCOVERY IN THE INFORMATION AGE (2005).
144. See supra note 111.
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376 Yale Journal of Law & the Humanities [Vol. 23:339
Yet in many stories, that conflation of roles does more: it capitalizes on
the lawyer’s ability to frame and solve problems, and thus suggests, in
keeping with the analogies discussed above, that lawyer and detective rely
on a similar analytical toolkit. Both figures share an interest in reasoning
from a set of facts that must be admitted or excluded from consideration
on the ground of relevancy, according to an elaborate set of rules. That
attribute was noticed as early as the 1840s, when commentators on Poe’s
pioneering efforts with the clue-puzzle form remarked on its bravura
display of legal skills. One reviewer concluded that the investigations of
C. Auguste Dupin, Poe’s detective, seem to reflect “the actual observation
of some experienced criminal lawyer, the chain of evidence is so
wonderfully maintained through so many intricacies, and the connexion
of cause and effect so irresistibly demonstrated.”145
Another affirmed that
“[n]o lawyer or judge has ever equaled Poe in the power he manifests of
sifting evidence—of balancing probabilities—of finding the multum of a
large legal case in the parvum of some minute and well-nigh invisible
point . . . . It is as though Chatterton had become a Bow-street officer.”146
Like casebooks for law students, writers of detective fiction often
claimed to be concerned with teaching their readers how to reason. The
Sherlock Holmes stories, for example, often include a remark about the
“instructive” or “educational” features of the case that Watson has chosen
to describe.147
The pedagogical aspect generally surfaces again at the
145. Matthew Pearl, Introduction to EDGAR ALLAN POE, THE MURDERS IN THE RUE MORGE:
THE DUPIN TALES, at x (2006) (quoting Review, Prose Romantics, PENNSYLVANIA INQUIRER, July 26,
1843, at 2); see also id. at x-xi (quoting letter of Philip Pendleton Cooke to Poe, Aug. 4, 1846, stating
that “a prosecuting attorney in the neighborhood here declares [the Dupin stories] are miraculous”).
146. [Anon.], Edgar Poe, LITTELL’S LIVING AGE 166, 170 (Apr. 2, 1854). As these comments
suggest, Poe’s stories claim to present the kind of intellectual challenge that would later be seen as
one of the primary virtues of the detective story. It is not clear why others did not capitalize more
quickly on the possibilities that his stories displayed. Panek explains the delay on the grounds that the
crime fiction of Poe’s day centered on “sentiment and morality” (which Poe’s stories did not); that
Poe was interested in “the psychology of perception and . . . of the game player,” and “not the
psychology of the criminal or the victim or the avenger or (as in most nineteenth-century crime
fiction) the psychology of those who suffer from crime”; and that “none of Poe’s Dupin stories has
anything to do with points of law.” PANEK, supra note 18, at 9. Instead of following Poe’s example,
Panek notes, writers of detective fiction in the mid-nineteenth century offered stories that emphasized
the sentiment associated with crime and those touched by crime,” and “the mundane, pre-modern
procedures of the police and the detective.” Id. at 10. Those tendencies “took the American detective
story off the path marked by Poe.” Id. Thus Poe might be seen as playing much the same role in the
history of the detective story that Byles played in the history of the case method. See supra note 30.
Both figures advocated a narrative approach to reasoning and analysis at a time when the institutional
or generic conditions for implementing this approach were unfavorable.
147. E.g., The Adventure of the Three Students, in 2 DOYLE, supra note 136, at 1064 (“[I]t was
during this time that the small but instructive adventure which I am about to relate befell us.”); The
Adventure of the Red Circle, in 2 id. at 1284 (“Education never ends, Watson. It is a series of lessons
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stories’ close, when Holmes recapitulates his reasoning process for those
too slow to match it. Thus one critic notes that
[m]any conversations between Holmes and Watson are reminiscent
of a Socratic dialogue in which the student does not know how to
proceed correctly without the continuous help and suggestions of the
master, and has a tendency to put forth wrong opinions each time
that he works by himself. We get to know, if only partially, the right
principles applied by Holmes just because of Watson’s mistakes.148
The analytical techniques modeled in Holmes’ explanations typically
display the same strategies of induction, deduction, and abduction
promoted by the case method. In both instances we see a dedication to
rigorous logical analysis, performed according to an orderly narrative
procedure that spells out its premises and conclusions.149
That shared
commitment to a logical method provides a second explanation for the
overlap between detectives and lawyers.
Further, as this account has been emphasizing, the analysis in both
instances is displayed in a narrative form. Like the reader of the detective
story, the law student is taught to reason through exposure to a form
structured by the positing and resolution of a problem. Relatedly, it was
during the second half of the nineteenth century that stories and novels
involving legal problems began to use those problems as the guiding force
for the structure of the narrative. Up until the mid-nineteenth century,
British and American novels frequently included such legal issues as
with the greatest for the last. This is an instructive case.”); and A Study in Scarlet in 3 id. at 196-97
(“There has been no better case within my recollection. Simple as it was, there were several most
instructive points about it.”).
148. Gian Paolo Caprettini, Peirce, Holmes, Popper, in THE SIGN OF THREE: DUPIN, HOLMES,
PEIRCE 135, 151 (Umberto Eco & Thomas A. Sebeok eds., 1983). Doyle achieves a similar effect
with Holmes’s intake interviews with his clients, which often include an element of crossexamination.
For more on the educational effects of detective stories, see, for example, PANEK, supra
note 18, at 78 (noting that “the justification about teaching logic” was a common feature of early
twentieth-century “scientific detective stor[ies]”); RZEPKA, supra note 49, at 127 (noting the implicit
premise that “any reader, presumably, could learn the . . . ‘methods’ of observation and deduction and
rise in the meritocracy of fictional detection”); WELLS, supra note 67, at 1 (praising the genre for its
“value in training the mind to logical and correct modes of thinking; the practical application of
which, in the everyday affairs of life, proves a valuable asset”); and Lila Marz Harper, Clues in the
Street: Sherlock Holmes, Martin Hewitt, and Mean Streets, 42 J. POPULAR CULTURE 67, 74 (2009)
(discussing the Strand Magazine in the 1890s and observing that “the detective story is not an
anomaly in this periodical” but instead, like other articles in the magazine, “explores the danger its
readers see in their world and gives a model of how to organize the street by being watchful and
collecting clues” and showing “how to develop a methodical procedure based on clues”).
149. That is the point of the critique in Mackenzie’s article on the deficiencies of the plots and
strategy in various Sherlock Holmes stories, supra note 63. See also Donald R. Richberg, Sherlock
Holmes, Witness–The Famous Detective Testifies, 19 GREEN BAG 471 (1907) (a comic short story in
which Holmes’s deductions are all struck from the record as irrelevant or lacking any factual basis).
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378 Yale Journal of Law & the Humanities [Vol. 23:339
inheritance disputes, bigamy, and murder, but those issues figured simply
as a plot element that did not affect where the story began and ended.150
By the end of the nineteenth century, however, novels incorporating those
issues were far more likely to organize the plot around the development
and resolution of the dispute.151
The view that legal problems were best
understood in narrative terms was becoming much more prevalent in
England and the United States and also found expression in practice
manuals that increasingly emphasized the story-telling ability as a crucial
skill for trial lawyers.152
Yet another feature connecting the lawyer and the detective involves
the kind of expertise associated with these two figures in the latenineteenth
century. Both were experts who could look at seemingly
commonplace details and find meanings that were invisible to other
observers. Just as Holmes specializes in identifying the habits and
occupations of his clients by looking at their hands or clothes, the lawyer
who listens to a description of a negotiation between two parties or who
observes an accident on a railway platform, can pick out the salient details
that allow her to predict what a court would say about how to assess
150. For example, Henry Fielding’s Tom Jones (1749), Jane Austen’s Pride and Prejudice
(1811), and Charles Dickens’s Bleak House (1852) all raise questions about inheritance law, and have
been studied through that lens by lawyers and literary critics, but even Dickens’s novel, which
presents a legal dispute as a central aspect of the plot, does not structure its plot according to the
commencement and resolution of that dispute.
151. One way to observe this pattern is provided by John H. Wigmore, List of 100 Legal Novels,
2 U. ILL. L. REV. 574 (1907) (corrected reprint at 17 U. ILL. L. REV. 26 (1922)). Wigmore includes
both novels that revolve around legal issues, such as those listed in supra note 150, and novels
structured around the form of a case; however, once the latter became prominent, Wigmore included
only those. Thus the legally-themed novels on Wigmore’s list all date from the first half of the
nineteenth century, while those from the later nineteenth century have plots that follow the structure
of a legal dispute. For a related discussion of narrative structure, see JONATHAN GROSSMAN, THE ART
OF ALIBI 167 (2002) (addressing “what it might mean—both historically and formally—to think of a
trial that is depicted in a novel as a scene beside and through which the novel has positioned itself.”).
See also Lyn Pekett, The Newgate Novel and Sensation Fiction, 1830-1868, in THE CAMBRIDGE
COMPANION TO CRIME FICTION, supra note 140, at 19, 34 (“Although the law court was the source of
many sensation plots, sensation novels do not end in the courtroom or the prison.”). William
Godwin’s Things as They Are, or, The Adventures of Caleb Williams (1794) is an early example of a
novel that turns a mystery into an adversarial legal dispute and whose conclusion coincides with the
end of a trial that resolves the mystery. For discussions of the novel, see GROSSMAN, supra, at 37-61;
and Nicholas M. Williams, The Subject of Detection: Legal Rhetoric and Subjectivity, in Caleb
Williams, 9 EIGHTEENTH-CENTURY STUD. 479 (1997).
152. See, e.g., JOSEPH WESLEY DONOVAN, TRIAL PRACTICE AND TRIAL LAWYERS: A TREATISE
ON TRIAL OF FACT BEFORE JURIES 34-35 (St. Louis, Stevenson 1883); HENRY HARDWICKE, THE ART
OF WINNING CASES, OR, MODERN ADVOCACY: A PRACTICAL TREATISE ON PREPARATION FOR TRIAL,
AND THE CONDUCT OF CASES IN COURT 75 (New York, Banks 1894); [RICHARD HARRIS], HINTS ON
ADVOCACY, INTENDED FOR PRACTICE IN ANY OF THE COURTS . . . REVISED AND ADAPTED BY AN
AMERICAN LAWYER 12-13, 32 (St Louis, Stevenson 1880); ALEXANDER H. ROBBINS, A TREATISE ON
AMERICAN ADVOCACY 60 (St. Louis, Central Law Journal Co. 1913).
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liability.
But the kind of expertise that the lawyer and detective share goes
beyond seeing meaning that is invisible to untrained eyes. Both figures
are experts at garnering support for their views on the basis of details that
no one else had observed at all—details that did not even exist in anyone
else’s view of the case.153
Having developed a theory of the case, the
lawyer knows what facts she will need to establish to validate the
theory—whom she will need to interview, what records she will need to
examine.154
Holmes, similarly, frequently astonishes his competitors on
the police force by knowing exactly where to search for the facts he
needs—facts that the police never thought to look for in the place. Thus in
Silver Blaze, when Holmes finds a discarded match, we are treated to the
following exchange:
“‘I cannot think how I came to overlook it,’ said the inspector with
an expression of annoyance.
[Holmes]: ‘It was invisible, buried in the mud. I only saw it
because I was looking for it.’
[The inspector]: ‘What? You expected to find it?’”155
The ability to rewrite the factual record has the potential to reshape the
world, to introduce a new perspective that reorganizes the details bearing
on innocence and guilt, so that non-experts, tasked with evaluating the
plausibility of the revised story, may find themselves compelled to agree
with this new explanation.156
The professional’s ability not only to notice
details that are meaningless to others, but also to bring facts into being,
provides a fourth reason for the overlap we have been considering.
Finally, while the lawyer and the detective are both professionals, they
nevertheless approach their task as if it were a game—a specialized,
153. The importance of creating a record was emphasized in numerous practice manuals
published in the late nineteenth and early twentieth centuries. See the sources cited in Robert A.
Mead, ‘Suggestions of Substantial Value’: A Selected, Annotated Bibliography of American Trial
Practice Guides, 51 U. KAN. L. REV. 543 (2003).
154. As Michael Tigar observes, “Facts are mutable because we never see them in litigation. We
see instead their remnants, traces, evidences, fossils—their shadows on the courthouse wall.” TIGAR,
supra note 7, at 161 (quoting Michael E. Tigar, Habeas Corpus and the Penalty of Death, 90 COLUM.
L. REV. 255, 256 (1990) (reviewing JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND
PROCEDURE (1988))).
155. Silver Blaze, in 1 DOYLE, supra note 136, at 404. Similarly, in The Red-Headed League,
after Holmes and Watson have visited their client’s assistant, Watson asks his friend, “What did you
see?” and is told, “What I expected to see.” The Red-Headed League, in 1 DOYLE, supra note 136, at
60.
156. Nancy Pennington & Reid Hastie, A Cognitive Theory of Juror Decision Making: The Story
Model, 13 CARDOZO L. REV. 519 (1993).
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380 Yale Journal of Law & the Humanities [Vol. 23:339
serious, and demanding game with potentially devastating consequences,
but still a game.157
Entailed in the commitment to “artificial reason,” with
its implication of rigorous thinking within a narrow compass, is the ability
to bracket certain considerations, emotions, and attitudes that drive the
thinking of laypersons.158
The idea that one might find enjoyment in that
exercise of discipline is evident in Austin Freeman’s observation that for
lawyers reading detective fiction, “[t]he pleasure is yielded by the
argument itself and tends to be proportionate to the intricacy of the proof.
. . . [T]he satisfaction yielded by an argument is dependent upon a strict
conformity with logical methods.”159
Freeman’s view coincides with that
of James C. Carter in his endorsement of the case method in a speech at
Harvard in 1886: “This method of studying law, by going to the sources,
is no royal road, no primrose path. . . . [But] I know . . . of no greater
intellectual gratification that those which follow from the solution in this
way of the problems of the law.”160
Of course, legal advocacy depends on a combination of emotion and
logic, but the predominance of logic in the mixture helps to explain why
lawyers are sometimes regarded with horror.161
The detective as coldblooded
logic machine is also a common feature in mystery stories—a
feature that was quickly isolated as one of the sleuth’s most characteristic
traits, as Jacques Futrelle, for example, emphasized when in 1907 he
invented a detective named Professor Augustus S.F.X. Van Dusen, also
known as “the Thinking Machine.”162
One of the most striking
developments in the detective fiction of the 1890s and early 1900s was
the speed with which writers began to create detectives who never
157. On litigation as a game, see William H. Simon, The Ideology of Advocacy: Procedural
Justice and Profesional Ethics, 1978 WIS. L. REV. 29, 104 (“The game analogy rationalizes the
contradictions between substance and procedure. The game is a social phenomenon in which the
satisfactory quality of the outcome depends almost entirely on the proper implementation of
procedures. People usually feel that when the rules are followed the outcome of a game is just,
precisely because the rules have been followed.”) As this passage shows, Simon considers litigation
as a game of chance, not a game of skill.
158. While the observation is a familiar one, a particularly thoughtful discussion may be found in
ALAN HYDE, BODIES OF LAW 19 (1997).
159. Freeman, The Art of the Detective Story, supra note 69.
160. Quoted in Keener, The Methods of Legal Education, supra note 55, at 147.
161. For a useful discussion of characterizations of lawyers during the period of
professionalization in the later nineteenth century, see Anne McGillivray, He Would Have Made a
Wonderful Solicitor: Law, Modernity, and Professionalism in Bram Stoker’s Dracula, in LAWYERS
AND VAMPIRES: CULTURAL HISTORIES OF LEGAL PROFESSIONS 225 (W. Wesley Pue & David
Sugarman eds., 2003).
162. JACQUES FUTRELLE, THE THINKING MACHINE (1907). Doyle reflects the same view in The
Sign of Four, when Watson calls Holmes “an automaton—a calculating machine,” and adds, “There is
something positively inhuman in [him].” 3 DOYLE, supra note 136, at 235.
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ventured out to hunt for physical clues at all, but simply waited patiently
for the client to recite the details and then announced the solution.163
The
shift from the action-oriented detective fiction of the mid-nineteenth
century could hardly be more pronounced: now that the genre has moved
indoors and turned to its attention to logic, the measure of the detective’s
talent seems to turn on his distance from the physical details whose only
use is to confirm his theories.
Perhaps it was that impulse, too, which prompted Melville Davisson
Post to make Randolph Mason a composite of the professional detective
and the professional lawyer. To complete the image, Post endows Mason
with an encyclopedic knowledge of the common law and statutory law of
every state in the United States, so that when confronted with any
question, he can suggest a solution without needing to consult the law
books.164
In Post’s first collection, Mason offers these solutions to help
wrongdoers benefit from legal loopholes. There could perhaps be no
better illustration of the ideology of zealous advocacy, but when Post
chose to exalt the lawyer’s professionalism in this manner, he was widely
criticized both for teaching criminals how to evade the law and, more
fundamentally, for portraying a lawyer so addicted to intellectual
stimulants that he was willing to indulge that habit even if it meant acting
against the public good.165
Post’s experiment thus recalls the English
debate over the Newgate Novel in the 1830s and ‘40s—a debate in which
novels offering sympathetic portrayals of thieves and murderers were
attacked for making vice attractive.166
That debate ended with the defeat
of the Newgate Novel, and in his later collections Post similarly
abandoned his plan of using Mason’s talents to aid the vicious, instead
portraying Mason’s clients as hapless victims.167
But despite this revision
163. In addition to Futrelle, supra note 162, see, for example, M.P SHIEL, PRINCE ZALESKI
(London, John Lane 1895); and BARONESS ORCZY, THE OLD MAN IN THE CORNER (1909).
164. See, e.g., POST, supra note 18, at 79-81; 137-38.
165. See NORTON, supra note 15, at 72, 75.
166. GROSSMAN, supra note 151, at 138-43, 157-58; KEITH HOLLINGSWORTH, THE NEWGATE
NOVEL, 1830-1847 (1963). David Seipp, Holmes’s Path, 77 B.U.L. REV. 515, 542-45 (1997),
suggests that Mason may have provided a literary source for Oliver Wendell Holmes’s view of law as
a means of planning against the subterfuges of the “bad man.” Insofar as the stories incite the reader
to predict the legally acceptable ruse that will rationalize Mason’s advice, they also enlist the reader
on the lawyer’s side, inviting imaginative identification with the “bad man’s” mindset—precisely the
response that had prompted widespread opposition to the Newgate Novels, which aligned the reader’s
perspective with that of the novels’ criminal protagonists.
167. When Post began a new series of Randolph Mason stories, in Pearson’s Magazine in 1907,
the editors explained that the lawyer would now be “the champion of right instead of the tutor of
criminals,” a role that would assuredly be “more universally satisfactory to our readers.” Nevins,
supra note 18, at 189 (quoting 17 PEARSON’S MAG. 120 (1907)).
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382 Yale Journal of Law & the Humanities [Vol. 23:339
in the moral aim of Mason’s efforts, there still remains a sense that the
lawyer’s interest lies in circumnavigating the doctrinal requirements, that
law is a game conducted outside of the moral and emotional demands of
everyday life.
While these five features help to explain why legal analysis and
detection have so much territory in common in the late nineteenth and
early twentieth centuries, it is evident that other forms of investigation
may include those features as well—particularly in the medical area,
where case histories were also on the rise.168
Recent scholarship in
medicine, as in law, has witnessed a “narrative turn,” in part because of
the role of the case history.169
Yet there are important differences that
explain why case study might have particular significance in legal
education and research. Arguably, medicine does not share the same
game-playing mentality, and perhaps the doctor’s expertise is more likely
to manifest itself in observing facts that are invisible to untrained eyes,
rather than seeking to create new facts. But insofar as these two
distinctions have any force at all, it is because they follow from a more
fundamental distinction: the doctor’s position is not an inherently
adversarial one. While cases of medical mysteries may occasionally
involve a conflict between two physicians, more typically the conflict is
cast as pitting the physician against the disease. What is distinctive about
the developments we have been considering is that they all arise in the
context of an adversarial struggle between two actors over interpretation
or representation. In those instances, the narrative form that tracks the
resolution of the dispute, and of the principles that resolve it, functions as
a particularly effective vehicle for revisiting and reinterpreting the
dispute.
168. See, e.g., IAN A. BURNEY, BODIES OF EVIDENCE: MEDICINE AND THE POLITICS OF THE
ENGLISH INQUEST, 1830-1926 (2000); CYNTHIA J. DAVIS, BODILY AND NARRATIVE FORMS: THE
INFLUENCE OF MEDICINE ON AMERICAN LITERATURE, 1845-1915 (2000); Walter B. Cannon, The
Case Method of Teaching Systematic Medicine, 142 BOSTON MED. & SURGICAL J. 31 (1900). For
other examples, see BARBARA CZARNIAWSKA, WRITING MANAGEMENT: ORGANIZATION THEORY AS
A LITERARY GENRE 79 (1999) (“Management She Wrote: Organization Studies and Detective
Stories”); William Breit & Kenneth G. Elzinga, Economics as Detective Fiction, 33 J. ECON. EDUC.
367 (2002).
169. See, e.g., NARRATIVE RESEARCH IN HEALTH AND ILLNESS (Brian Hurwitz et al. eds., 2004);
STORIES MATTER: THE ROLE OF NARRATIVE IN MEDICAL ETHICS (Rita Charon & Martha Montello
eds., 2002); Marie-Laure Ryan, Toward a Definition of Narrative, in THE CAMBRIDGE COMPANION
TO NARRATIVE 22 (David Herman ed., 2007).
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CONCLUSION
Given the contrast between the habits cultivated by the case method and
those cultivated through the lecture and memorization approach, it would
be surprising if case-method pedgagogy had no effect on legal analysis
except to make students more adept at an earlier stage of their
professional development. Numerous studies by linguists, cognitive
scientists, and educational psychologists have shown that the tools with
which we engage problems are essential to our perceptions of those
problems and their possible solutions.170
Thomas Grey has argued that
while no one today shares the legal-scientific ideology that guided
Langdell’s thought, his “classical ordering . . . half-survive[s] in the backs
of lawyers’ minds and the front of the law school curriculum, where it can
shape our thinking though its unspoken judgments.”171
Just as “categorical
schemes have a power that is greatest when it is least noticed,”172
the
same may be said about the aesthetic forms that those schemes enact and
the aesthetic values they promote. The puzzle-positing, evidenceamassing
mentality of Langdell’s pedagogy continues to influence our
views about what legal analysis should achieve and how it should be
conducted to produce that outcome. This section offers two ways of
exploring that suggestion, drawing on the example of a casebook’s
adaptations of a particular judgment, and then considering a
jurisprudential tendency that emerged around the end of the nineteenth
century.
Unless presented as a part of a much larger-scale study than I undertake
here, an example drawn from a casebook can claim only to be indicative,
and not typical. Thus the following discussion of MacPherson v. Buick
Motor Co.173
is meant to illustrate what I hope will be recognizable as a
familiar practice, even if it does not represent the only means of editing
cases. MacPherson is widely read in Torts classes as a contribution to the
developing law of negligence in the early twentieth century. In holding
Buick liable for harm resulting from a defective wheel that Buick had not
manufactured, used in a car that the plaintiff had purchased from a dealer,
and not directly from Buick, then-Judge Cardozo eliminated the
requirement that parties must be in privity if a vendor is to owe a duty of
care to a purchaser. Cardozo attended Columbia Law School in the early
170. E.g., GEORGE LAKOFF & MARK JOHNSON, METAPHORS WE LIVE BY (2003).
171. Grey, supra note 39, at 50.
172. Id. at 49-50.
173. 111 N.E. 1050 (1916).
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1890s, just as the case method was being introduced there. According to
his biographer, Cardozo later “indicated that he had come to appreciate
the educational value of the new method of instruction,” which he praised
for eliminating the practice of “‘learn[ing] by rote out of a text book’” and
instead focusing on “‘the cases themselves’” so that students might
“‘analyz[e] the facts [and] dissec[t] the reasoning.’”174
Cardozo’s opinion in MacPherson is short; the text (stripped of the
headnotes) comprises sixteen paragraphs, occupying five pages in the
Northeastern Reporter.175
The first paragraph sets out the facts and ends
by posing the question “whether the defendant owed a duty of care and
vigilance to anyone but the immediate purchaser.”176
The next one traces
“[t]he foundations of this branch of the law,” noting that an early case
allowed an end-purchaser to recover from a manufacture whose
negligence “‘put human life in imminent danger,’” because in that case, as
Cardozo explains it, “the danger [was] to be foreseen, [and so] there [was]
a duty to avoid the injury.”177
Continuing the historical survey, Cardozo
considers cases in which the plaintiff did not recover, and he distinguishes
them on the ground that “the risk of injury was too remote.”178
In the next
step, he notes that the “early cases suggest a narrow construction of the
rule” and that more recent ones “evince a more liberal spirit’” that has
been more concerned with likely uses of the product than with privity.179
Four more paragraphs review the recent jurisprudence, noting that in
Heaven v. Pender, the “right to enforce . . . liability [was] not . . .
confined to the immediate buyer.”180
By slow and steady steps, Cardozo
works forwards chronologically, explaining the facts of the cases and their
reasoning in a way that points to a concern with the foreseeability of harm
from products that are inherently dangerous, but without yet setting out
that principle as the holding. Ideas about privity, inherently dangerous
objects, and remoteness of harm emerge in a way that most professional
lawyers would probably find entirely predictable, but the notable feature
for present purposes is that these ideas slowly come into visibility through
discussion of particular examples; Cardozo does not specify the relations
174. ANDREW L. KAUFMAN, CARDOZO 49 (1998) (quoting Cardozo, Modern Trends in Law).
175. 111 N.E. 1051-1055. There is also a dissent, by Chief Justice Bartlett, which I do not
discuss here, and which is not usually included in casebooks.
176. Id. at 1051.
177. Id.
178. Id. at 1052.
179. Id.
180. Id.
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2011] Stern 385
among the concepts in advance so as to render the discussion merely
illustrative. For those learning how to read judgments, Cardozo’s opinion
may help to cultivate the skill of using the details to anticipate the
holding.
The holding appears in the middle of the opinion, in paragraphs eight
through ten.181
Cardozo begins the last of those paragraphs by observing
that “[f]rom this survey of the decisions, . . . there thus emerges a
definition of the duty of manufacture which enables us to measure this
defendant’s liability,”182
and he proceeds to apply the holding to the facts
at hand. In the remainder of the opinion—six more paragraphs—Cardozo
acknowledges conflicting judgments from other jurisdictions,183
notes the
“unsettled” state of the law in England, 184
rejects ostensible anomalies, 185
and dismisses some possible arguments that the defendant might raise.186
In its overall movement, then, the judgment begins with the suspenseoriented
structure described earlier,187
but does not end there. Cardozo
starts with the facts, moves from the earlier cases to the most recent ones
before setting out the holding, and then considers the state of affairs in
other jurisdictions and fends off possible objections. Rather than serving
as the endpoint, the holding appears halfway through, to be followed by
meditations on related legal issues.
Compare the form of this judgment in a recent Foundation Press
casebook, Products Liability and Safety.188
The casebook reprints the
entirety of the first paragraph and radically condenses the next six,
retaining the language that distinguishes the “narrow construction” from
the “more liberal spirit,” along with a few of the earlier cases and their
facts, but wielding an editorial pen that streamlines the movement towards
the holding.189
The student need not comb the first half of the judgment
for the relevant facts and the principles as distilled by Cardozo, because
they have been pried out of their larger setting. One might say the clues
have been isolated and placed in plain sight, rather being left to be
discovered. They are still clues, in the sense that their meaning remains to
181. Id. at 1053.
182. Id.
183. Id. at 1053-54.
184. Id. at 1054.
185. Id. at 1054-55.
186. Id. at 1055.
187. See supra page 342.
188. DAVID G. OWEN, JOHN E. MONTGOMERY & MARY J. DAVIS, PRODUCTS LIABILITY AND
SAFETY: CASES AND MATERIALS (4th ed. 2004).
189. Id. at 50-51.
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386 Yale Journal of Law & the Humanities [Vol. 23:339
be discerned in a judgment that has not yet stated its operative principle,
but the burden of determining which material is important has been
assumed in advance by the editors. The narrative trajectory is similar to
the one in the original judgment, with the difference that Cardozo’s slow,
methodical tempo has been sped up, and potentially distracting details
(the possible red herrings noted earlier) have been cleared away. The
editorial changes in the latter part of the judgment are even more notable.
The material that follows the holding is reduced to three very short
paragraphs, each heavily condensed and making up less than half a page
in total.190
The edited version retains almost nothing after the holding,
which provides the end of the narrative arc in this version. My point is not
to criticize the casebook for distorting Cardozo’s language or pursuing
some dubious agenda against unwitting law students, but simply to note
that it does what casebooks often do. It would be seen as heretical if a
literature textbook undertook this kind of editorial condensation, whereas
a legal casebook is more likely to provoke criticism if it fails to streamline
the text. In this instance, while the demand to locate the material details
has been lessened, there is a much stronger sense of movement towards a
principle that terminates the analysis. Repeated encounters with this form
are likely to encourage a view of cases as narrative units with plots
oriented around a doctrinal problem.
The case method encourages students to approach decisions as puzzles
to be dismantled, probed, and solved. The strategies acquired through this
method become habits and reflexes that the student brings to bear on new
problems. Later nineteenth-century American legal thought offers some
examples of a style of analysis that allows for the excavation of hidden
principles, and this style came dramatically to the forefront in the
twentieth century. In Boyd v. United States,191
the Court held for the first
time that the Fourth Amendment, previously taken at face value to protect
citizens’ “security,” should instead be understood to protect privacy, a
right now discernible as providing “the very essence of constitutional
liberty and security” beneath the text’s express language.192
The Court’s
jurisprudence had long held that one might look to the structure of
federalism to resolve constitutional questions, but this approach merely
required an inquiry into the relations between federal and state law as
necessary preconditions for the system in which the Constitution operates.
190. Id. at 52-53.
191. 116 U.S. 616 (1886).
192. Id. at 630.
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It is another matter to assert that a particular constitutional provision has
an “essence” that is discernible neither on the surface nor by resort to
some logically prior legal or political structure, but which instead reflects
a meaning that must be discovered by reaching beneath the text’s surface.
This interpretive mode, rarely on display before the late nineteenth
century, would soon become more prevalent. Around the turn of the
century, Allgeyer v. Louisiana193
and Lochner v. New York194
reveal a
Supreme Court capable of discovering a substantive right to freedom of
contract buried in the procedural provisions of the Fourteenth
Amendment, and while Lochner’s conclusions eventually would be
repudiated, the judgment exemplifies an interpretive approach that would
only gain more traction. The same mode of analysis is rendered even
more explicit in Griswold v. Connecticut,195
with its talk of “penumbras”
and “emanations,” bespeaking a search for the underlying springs that
give rise to the Constitution’s express guarantees.
The power of this analytical approach may help to explain why the case
method continues to be so successful, more than a hundred years after its
introduction, and after many years of criticism. For Langdell, the
method’s power lay in its ability to unearth basic common-law principles
that courts often glimpsed imperfectly, or even missed completely. In an
age of legal positivism, the idea that essential principles are simply
awaiting discovery no longer seems plausible, but ongoing research in
linguistics, cognitive science, and psychology continues to show that we
act on the basis on motives that we can barely articulate. In a legal system
that places great emphasis on transparency, it is hardly surprising that
lawyers would also be compelled by the idea that legal doctrines reflect
unwitting assumptions that can be evaluated only if they are spelled out
explicitly. The search for underlying concepts and justifications, even if
originally motivated by a legal ideology that now finds little support, has
been adapted to modern views of the law and will probably continue to
serve as one of the basic strategies of legal pedagogy.
193. 165 U.S. 578 (1897).
194. 198 U.S. 45 (1905).
195. 381 U.S. 479 (1965).