Patterns of American Jurisprudence.

• Author: Grey, Thomas C.

The development of legal thought in America since the Civil War makes a natural subject for study. It makes a good story, too, for readers who are interested in law and who enjoy the interplay of ideas with events. Now, thanks to the English legal historian Neil Duxbury, we have the first booklength version of the story.(1) It is told very well indeed, but that should not prevent Dr. Duxbury from having plenty of successors-the subject is so rich that even his literate, thoughtful, and scholarly 500-plus page treatment is far from definitive.

I

Modem American jurisprudence gains some of its unity from the large historical developments that frame the period. After the Civil War, industry rapidly developed, urban populations increased, the frontier closed, a modern transportation and communications network developed, masses of immigrants arrived, and the United States struggled unsurcessfully with the aftermath of African slavery. As a result, American law had to come to terms with an economy built around large corporations and powerful centralized financial markets, with the broad distribution of mass-produced consumer goods, with the social problems of urbanization and large-scale immigration, with industrial labor relations, and with tragic racial divisions.

Another part of the frame is supplied by a more parochial development: the establishment of the modem American system of legal education. Under Christopher Columbus Langdell's model, instituted at Harvard in 1870, most American lawyers enter the profession by way of postgraduate study in a university-based law school staffed by full-time career teachers who are expected to write as well as teach. Of course the existence of a guild of teacher-scholars paid to write about law does not guarantee that the development of a nation's legal thought will make an interesting story. Much professional legal scholarship simply catalogues legal doctrine for the use of lawyers, judges, students, and teachers, and lacks theoretical interest or political significance. But American law professors have as their object of commentary the legal system of the most law-permeated and court-centered society in history. By the time the modern law school arrived on the scene in 1870, American judges had already established both their power of constitutional judicial review and their habit of freewheeling common law judicial legislation, and so could hardly have failed to play a large role in the nation's legal transition to modernity.

The judges did not let the chance pass by, and the new guild of law professors were not shy about offering them advice and criticism. In the newly founded university law reviews, scholars found a regular outlet for a kind of writing that aimed to influence lawyers and judges without being so practical as to justify commercial publication. As a result, American legal literature was never segregated between purely professional writing on the one hand and theoretical academic scholarship on the other. What emerged instead was a mixed genre combining practical commentary and advocacy with theoretical arguments about the proper roles of courts and legislatures, the relation of public policy to individual rights, the requirements of the rule of law, and (reflexively) the nature of legal inquiry. The twists and turns taken by legal scholars writing about these questions provide the stuff of modem American legal thought.

II

In a course I teach on this subject, I organize the developments of the first century of the modem period (1870-1970) into four schools of thought: Classic, Progressive, Realist, and Process. Each of these approaches to law had its moment, and the main ideas of all are still alive today, if only in some cases as negative precedents to be avoided. The scene since 1970 is more chaotic, partly because we are in the middle of it, but also because theories have proliferated as legal scholars have become more self-consciously theoretical. It might help if I sketch my own understanding of the sequence before I comment on Duxbury's treatment.

1. The Classicists

   A good story requires a strong beginning, and this is provided by the Classical legal thought that arose, without much conscious theorizing, at the beginning of the modem period in the United States. The Classical legal thinkers supplied the fundamental negative precedent, a set of satisfyingly extreme dogmas against which their successors could define themselves by rebelling. The prototype of Classical thought, Langdellian legal science, was perhaps the purest kind of legalism on record. A more old fashioned group of jurists promoted the kind of laissez-faire constitutionalism epitomized by the Supreme Court's decision in Lochner v. New York.(2) The basic plot line of American legal modernity has been drawn from the responses to Langdell and to Lochner.

   Langdell and his academic allies at Harvard and elsewhere promoted a vision of law that seemed tailored to the new university-based model of legal education.(3) The Langdellians treated law as an intellectual discipline independent of theology, moral philosophy, economics, or political science, one that involved the application of scientific methods to common law materials. Langdellian legal science was not only academically ambitious, but also, despite its apparently unworldly character, had impressive practical advantages. After the collapse of the common law writ system, it delivered to American lawyers and judges a new classification and formulation of private law doctrine. As a pedagogy, it sorted law students out according to their facility in quickly making analogies and distinctions among fact situations, which tracked the analytical abilities needed in the corporate and financial work that had become the mainstay of big-city practice. Finally, Langdellism supplied to a conservative bar and bench a classically liberal (which by that time meant politically conservative) legal ideology, providing an up-to-date scientific basis for the common law system's emphasis on the protection of property and on freedom of contract.

   Langdellian legal theory has sometimes been treated as an intellectual joke, but it was in fact a relatively coherent jurisprudence that emphasized three qualities many desire in a legal system. First, law should be formal, producing outcomes by the application of rules to facts without any intervening exercise of discretion. Second, law should be systematic, its rules descending deductively from a small number of coherently interrelated fundamental concepts and principles. Third, the resulting system should be autonomous, its principles derived from distinctively legal materials, not resting on politically or philosophically controversial claims or methods.

   The first desideratum, the formal realizability of legal outcomes, is a goal common to many legal theories. But the Langdellians linked formality to systematicity and autonomy in a way that made theirs the most formal of formalisms. Langdell illustrated the character of his legal thought in his explanation of why a contract by mail could not possibly be formed when the acceptance was sent (the now-familiar mailbox rule), but only when it was received and read. An acceptance had to serve not only as an objective manifestation of the offeree's intent, but also as a promise; otherwise no consideration would support the contract. The offeree could indeed objectively manifest intent to accept by mailing the acceptance, but because a promise by its nature had to be communicated, there could be no consideration until the letter was received and read by the offeror.

   Langdell insisted on the logical necessity of this conclusion, which in his view rendered irrelevant" any argument that the mailbox rule was fairer or better served the interests of the parties.(4) The mailbox rule would fail the requirement of systematicity, which required that legal rules must follow from a few fundamental principles rather than from any weighing of practical and moral considerations. Because arguments of justice and convenience were extralegal, they could not be invoked to justify an anomalous rule without violating the requirement of legal autonomy.

   The claim that justice, efficiency, and indeed everything but the internal conceptual logic of the system were irrelevant," dramatized the Langdellian legal scientist's principled neglect of the facts of human nature and culture; all the data of legal science were "contained in printed books,"(5) the appellate reports in the law library. Believing that this austerely positivistic approach could only be applied in its full purity to substantive private law, the Langdellians adamantly excluded procedure, legislation, and even public law from the purview of their scholarship and from the core law school curriculum.(6)

   The public-law form of Classical thought, laissez-faire constitutionalism, was promoted by an important group of less resolutely pure and scientifically modem legal commentators who fell outside the orbit of Langdellian legal science. The 1868 treatise by law professor and judge Thomas Cooley, Constitutional Limitations,(7) helped give the laissez-faire constitutionalist movement doctrinal formulation, and commentators like John Norton Pomeroy, John Dillon, and Christopher Tiedeman sustained that movement as it worked to overcome the traditional American judicial deference to regulation by state legislatures.(8) Often using an old-fashioned natural-rights language that Langdellians rejected as unscientific and legally impure, the Lochnerians elevated the core of the private law of property and contract to higher-law status.(9) After percolating for some years in the state courts and in treatises and dissenting opinions,(10) laissez-faire constitutionalism was nationalized around the turn of the century by the United States Supreme Court in Lochner v. New York and other decisions.(11)

2. The Progressives

   The next chapter...