Leading Cases in the Common Law.

• Author: Gordon, Robert W.

By A.W. Brian Simpson. Oxford: Clarendon Press. 1995. Pp. xii, 311. $39.95.

The notion of collecting "leading cases," Professor A.W. Brian Simpson(1) informs the reader of this engaging and profoundly subversive book, emerged in the nineteenth century as a handmaiden to the ideal of legal science. The cases gave a method of learning law not as a hodgepodge of precedents but as a coherent body of principles. A few cases provided exceptionally clear applications of the principles, and by concentrated study of these few the lawyer or law student could learn "how to tease out the principles from the cases, and how to apply them to the complex disputes which were presented to courts in litigation" (p. 5). Dean C.C. Langdell of Harvard put leading cases at the heart of his system of legal education. Although the ideal of legal science that the "case method" was supposed to inculcate has faded over the years, the method has spread to every law school in America, and with it the (remarkably durable) repertoire of famous cases that almost every student still encounters in the first year of law study.

Earlier in his career a distinguished historian of legal doctrine,(2) Simpson has more recently turned his formidable historiographical talent to something completely different: digging into the background and context of famous legal disputes, strewing the shards and fragments of his excavations(3) over the landscape, and reporting his endings in extensive and meticulous detail. In this new mode he has written book-length contextualizing studies of Regina v. Dudley & Stephens, in which two British sailors were condemned to death for eating their shipmates,(4) and of the nasty practice of the British government of detaining suspicious persons without trial during World War II.(5) Simpson's project in this book is to take on nine more of these English "leading cases," six from the nineteenth century, two from the eighteenth, and one from the sixteenth,(6) all still studied in Anglo-American law schools, all landmarks of a formalist legal science that he approaches in a decidedly antiformalist spirit. Simpson starts with the legal records and ranges outward from there, to the judges and lawyers, the litigants and their families, the biographical, genealogical, political, social, economic, and technological background of the dispute; then to the aftermath, the actual consequences for the parties and society; and finally to the part played by the case in the later history of legal dogmatics, the process of its canonization as a "leading case." If there is a more painstaking and ingenious researcher of local knowledge, a shrewder and more avid excavator of miscellanies, than Brian Simpson, I have never run across him: Simpson seems to have dug up pretty nearly everything that seems even remotely relevant to understanding his cases, and a great deal more besides. Indeed, so overwhelming is the mass of contextual detail that the reader is rescued from psychic inundation only by the inherent fascination of much of the background and Simpson's seductive charm as a storyteller. This is a very funny book.(7)

Even so, the reader (this reader anyway) finds himself murmuring a running commentary as the flood of detail rises higher and higher -- "fascinating . . . extraordinary . . . I had no idea . . . hilarious . . . amazing . . . but what's the point?" Sometimes Simpson's method looks like legal realism run amok, the piling up of incidental particulars, les fan's pour les fan's, context for context's sake. To be sure, readers who have this reaction ought to reflect that this irritable reaching for a "point" is a deformity of the legal mind, which is absurdly impatient to find a rule or "holding" or practical outcome for a client or a policy audience, incapable of keeping still for a moment to smell the flowers or listen to a good yarn. There doesn't have to be a "point" to a good narrative save that of setting the scene, reconstructing the smell and feel of the situation as contemporaries lived it.

Still, when legal writers go in for contextualization they usually do want to make a point. Consider some of Simpson's fellow-travelers in the thick-description game. There's a long legal-realist tradition of "gap" studies, showing the difference between the "law on the books" and the "law in action" by narrating what happens before and after cases are decided. Some of these, like Richard Danzig's studies of contract cases, dramatize what he calls the "capability problem"; that is, the limited capacities of appellate courts to comprehend the real stakes at issue in a dispute and, above all, to frame remedies that will effectively address the parties' interests.(8) Realist legal historians like James Willard Hurst and Lawrence Friedman have used similar methods to criticize the overvaluing of appellate doctrine, to show that court decisions are usually a relatively minor agent of the legal system compared to statutory and executive action, and that legal causes and effects of all kinds are often swamped by other social variables.(9) Similarly but more emphatically, Gerald Rosenberg reconstructs the context of the Brown decision(10) invalidating racial segregation of Southern schooling to argue the more general thesis that courts, even courts deciding great cases, have little causal importance as motors of social change.(11) In a related tradition, writers unearth what "really" happened in a case to demonstrate the absurdity and irrelevance of the doctrinal categories and analyses that judges employ.(12) Other writers have the sharper political aim of revealing a dark subtext of politics and power beneath the legal ideology of neutrality and the rule of law. Simpson himself mentions probably the best-known example, E.P. Thompson's history of the infamous Black Act of 1723,(13) which Thompson exposed as a landed elite's new weapon in the long struggle between gentry and commoners over use rights to the forests. "Outsider" scholars, concerned with the ways in which dominant legal discourses "silence" or "marginalize" subordinated groups such as women and racial and ethnic minorities, have hoped to find in contextualizing narratives or "storytelling" a means to restore suppressed perspectives, experiences, and normative longings as participants in a dialogue on the legal system.(14) Ironically, more...