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Abstract
Christopher Columbus Langdell (whose career ended a century ago) achieved fame by devising the case method to turn law into a laboratory science divorced from politics and to make his course so rigorous that it would attract able students seeking to test and prove themselves with the severest academic challenge. The method was adapted by many law teachers who were unpersuaded by the idea of law as apolitical science. These included Langdell's colleagues, James Bradley Thayer and John Chipman Gray, who shared Holmes's disdain for the theory. The method survived and flourished despite its theoretical weakness because it worked in practice. No mere rite of passage, it developed numerous traits and skills useful to lawyers, it revealed a true picture of the political and atomized nature of American law, and it nurtured many of the civic virtues that American law teachers have sought to nurture since the time of George Wythe.
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- Copyright © American Bar Foundation, 1995
References
1 Langdell resigned as dean in June 1895 and retired as Dane Professor in 1930. Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America 469 (1908, De Capo ed. 1970) (“Warren, History”). He died in 1906. Id. at 479.Google Scholar
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37 Walker was a native of Massachusetts and a former student of John Ashmun and Joseph Story. He was active in various law reform movements. His biography is Walter T. Hitchcock, Timothy Walker: Antebellum Lawyer (New York, 1990).Google Scholar
38 This insertion is justified in part because Walker was an early advocate of the rights of women and would have welcomed women into the legal profession. See id. at 228.Google Scholar
39 Introduction to American Law: Designed as a First Book for Students 1-2 (5th ed., 1869). The 11th edition of this work was published in 1905. For an echo of Walker's statement by Langdell's immediate predecessor at Harvard, see Emory Washburn, Law as an Element of Social Science (Boston, 1868).Google Scholar
40 The founding teacher was Benjamin F. Butler, a member of the Jackson and Van Buren cabinets. On the founding of the school, see generally Ronald R. Brown, ed., The Law School Papers of Benjamin F. Butler (New York, 1987). A law department was also established at the same time at Hamilton College, with a Jacksonian as law professor. Jesse H. Cousault, “John Hiram Lathrop,” m Dumas Malone, ed., 6 Dictionary of American Biography 16 (New York, 1935).Google Scholar
41 “To dignify any one calling by styling it a profession seemed undemocratic and un-American.” Roscoe Pound, The Lawyer from Antiquity w Modem Times: with Particular Reference to the Development of Bar Associations in the United States 182 (St. Paul, Minn., 1953) (“Pound, Antiquity”).Google Scholar
42 Samuel Haber, The Quest for Authority and Honor in the American Professions 1750-900 at 209 (1991), described this 1846 constitution as “the institutional expression of a ruinous confusion of justice with politics.” See also Pound, Antiquity 223-42.Google Scholar
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45 Goebel, History 68-89. Stevens erroneously inferred that Dwight was “hostile to nonlaw subjects” being taught in his school. Law School 39 (cited in note 11). Dwight did resist requiring his students to take Lieber's course or courses taught by Lieber's successors. This opposition surely reflected his concern for enrollment, not a preference for depoliticized law teaching.Google Scholar
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49 In 1817, the Michigan Territorial Legislature created a university and, at the behest of the Chief Judge of the Territory, Augustus B. Woodward, directed it to teach law. Woodward's model was the Law Department at the College of William and Mary. Elizabeth Gaspar Brown, Legal Education at Michigan 1859-1959 at 4-6 (Ann Arbor, Mich., 1959). An early enactment of the Michigan legislature in 1837 reiterated this mandate, and the directive was uttered again in 1851. Id. at 10. When at last the law department was established, its stated aim was to prepare democratic leaders. James V. Campbell, On the Study of Law (Ann Arbor, Mich., 1859); Address of Thomas McIntyre Cooley and Poem by D. Bethune Duffield on the Dedication of the Law Lecture Hall (Ann Arbor, Mich., 1863). And see Thomas McIntyre Cooley, The Lawyer's Duty to Be Faithful to His Own Manhood (Ann Arbor, Mich., 1878).Google Scholar
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99 Grey, 45 U. Pitt. L. Reu. (cited in note 6). Grey credits Duncan Kennedy for the term “classical” as applied to Langdellian formalism in America arising as early as 1850 and dying no later than 1940. Id. at 2 n.6. See also Morton Horwitz, The Transformation of American Low 1870-1960 at 9-32 (New York. 1992) (“Horwitz, Transformation”). This would indicate the term “pre-classical” for the more realistic thinking of earlier generations of Americans, Whig theorists being specified. Id. at 38 n.47. I quibble with the term as misleading. It suggests greater durability and strength in the moment of formalism than I perceive. Among thoughtful lawyers, it was a mere fad. l am also disconcerted by the identification of Francis Lieber as a classicist. Id. at 29 n.24. Lieber has far more in common with contemporaries such as Michelman, Sherry, Sunstein. and Kronman than with Langdell. See Carrington, 42 j. Legal Edw. (cited in note 34).Google Scholar
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105 “In short, [New England intellectual life] was still colonial forty years after Bunker Hill. English culture had a right of way that no one thought of challenging, and every Boston boy was taught to regard Pope and Burke as unapproachable.” Van Wyck Brooks, The Flowering of New England 1815-1865 at 10 (New York, 1936).Google Scholar
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107 Langdell was certainly aware of Austin at the end of his career. See his “Classification of Rights and Wrongs,” 13 Harv. L. Rev. 537 (1900). Holmes saw Hegelian influence in Langdell, but was careful not to suggest that Langdell had ever read Hegel. Book Note, 14 Am. L. Reu. 223 (1880).CrossRefGoogle Scholar
108 “The existence of law is one thing, its merit or demerit another.” John Austin, The Province of Jurisprudence Determined, ed H. L. A. Hart, at 184 (London 1955) (“Austin, Province of Jurisprudence”). The work was first published in 1835 but was not circulated in the United States until 1861.Google Scholar
109 Norman Silber & Geoffrey Miller, “Toward ‘Neutral Principles’ in the Law: Selections from the Oral History of Herbert Wechsler,” 93 Colum. L. Rev. 854, 858 (1993). Duncan Kennedy seems to fancy that there are many surviving specimens; he alleges that the Langdell fallacy is “the intellectual core of the ideology” of contemporary legal education. Kennedy, “Legal Education and the Reproduction of Hierarchy,” 32 1. Legal Edw. 591, 596 (1982). The allegation appears to rest on a conflation of those who think law is not politics with those who think law is not merely politics. And see Posner, Richard A., “Legal Scholarship Today,” 45 Stan. L. Reu. 1647 (1993); id., “The Deprofessionalization of Legal Teaching and Scholarship,” 91 Mich. L. Reu. 921 (1993). Judge Posner attributes to all professionalism in law a “deep-seated belief in the autonomy of law as a subject of thought and practice.”CrossRefGoogle Scholar
110 2 Warren, History 376 (cited in note 1).Google Scholar
111 Cooley did not try. In A Treatise on the Low of Torts or the Wrongs Which Arise Independent of Contracts 635 (Chicago, 1879) (“Cooley, Torts”), he emphasized the “high importance” of the social policy underlying the rule.Google Scholar
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117 The background of Ames's appointment is described by LaPiana, Logic and Experience 15-16 (cited in note 44). As LaPiana suggests, it may have been part of Eliot's purpose thus to weaken the influence of the profession on the professional school.Google Scholar
118 Sutherland, Law at Hmvard 185 (cited in note 2). William A. Keener of the Class of 1877 was appointed in 1881 and joined Ames and Langdell in its use. Holmes was appointed in 1882 and for a brief time used the case method in reaching Torts. 2 Warren, History 428-32.Google Scholar
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358 It may have been with such principles in mind that Montesquieu (bk. V, ch. 3; cited in note 23) advised the 18th-century Revolutionaries to revere their law if they would maintain a republic; the wisdom of his counsel has not yet been disproved.Google Scholar
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366 For an authoritative statement that this is occurring see Bar Task Force (cited in note 311). As Grey, 45 U. Pitt. L. Rev. at 53 (cited in note 6), among others observes, the growing disjunction is associated with a reduction of the “gap between legal scholarship and the rest of the intellectual world.”Google Scholar
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