Following up on yesterday’s post about Langdell’s Contracts casebook, I wanted to point out a very interesting article I have come across that argues that Langdell wasn’t much of a legal formalist. He was actually part of the move towards legal realism, the author argues, but is remembered as a formalist because he was caricatured by legal realists who needed to engage in the ritual slaying of the elders. The article is Marcia Speziale, Langdell’s Concept of Law as Science: The Beginning of Anti-Formalism in American Legal Theory, 5 Vt. L. Rev. 1 (1980).
Here is the introduction:
The caricature we have of Christopher Langdell shows him as an arid conceptualist, a “brilliant neurotic” whose spirit choked legal education; or not even that: “an essentially stupid man who, early in his life, hit on one great idea to which, thereafter, he clung with all the tenacity of genius.” Having said that law should be studied by way of cases, piercing them for principles, Langdell was jokingly called a “legal theologian.” Having said that the lawyer’s library was his research laboratory and that the university was a proper place for legal study, Langdell came to be seen as a dry logician, “divorced from society and life.” Such a Langdell was a wonderful formalist target for the skeptical Realists who sought to apply the behavioral sciences to law and for those who stressed the dynamism of the legal process in society. Not only has the memory of Christopher Columbus Langdell suffered from this distorted exaggeration, but so has our understanding of American legal thought.
For the people who lived in the late nineteenth century, science was anything but a superstructure of absolute natural laws. In 1849 Darwin had declared that species originate by chance variation–evolution–and this idea was widely embraced by scientists and lay persons alike. Empiricism and the formulation of working hypotheses prevailed as the scientific method, replacing the monistic notion of a rationally connected universe.
If we look at Langdell in this late-nineteenth-century context, the caricature of “Langdellianism” begins to crumble. In keeping with the spirit of his age, he entreated law students to go to the original sources of law and apply the scientific method. He refused to lecture (thereby implicitly rejecting the notion that a professor could impart knowledge of the law via fixed, true maxims), instead inviting students to journey with him through the sea of cases. The principal occupation in his classroom was the endeavor to extrac the essences of judicial opinions and to discern patterns among them. Nothing that he did or said was inconsistent with the positivist approach to law that sees rules as constructs of cases and predictions of future decisions. Langdell never directly said so, but he may have ascribed to organicism; Langdell may have been asserting that the law grows and develops by cases which we perceive in configurations, but which have nothing to do with an immutable absolute.
The crystallized picture of Langdell as a formalist believer in true, discoverable legal order obscures the empirical Langdell, who threw over dry lectures and fixed maxims in favor of reading and discussing cases — a learning approach more akin to the everyday practice of law. If he was not the very first legal realist, Christopher Langdell must at least be seen as the bridge from formalism to what caime later in American legal theory.
I also came across a terrific historiography of Langdell, which discusses how scholars have imagined Langdell and is pretty dismissive of the legal realist’s vision of Langdell as the super-formalist. See Bruce A. Kimball, The Langdell Problem: Historicizing the Century of Historiography, 1906-2000s, 22 Law & Hist. Rev. 277 (2004). Kimball wonders how the “common wisdom” on Landgell could be so far off of the reality, and how so many would caricature Langell without looking at what he actually said:
[H]ow and why has the century of scholarship on Langdell overlooked the majority of original sources that would normally be considered in a scholarly analysis of a historical figure and, instead, consulted a small and selective base of evidence? Many of the most influential statements in Langdell historiography have come from scholars who have studied or taught at Harvard or Yale. Yet, it seems that none, until very recently, has ever surveyed the archives in the most obvious and readily accessible place–Harvard Law School–for original writings by Langdell. Over the past fifty years, this kind of survey has been undertaken about Joseph Story, O. W. Holmes, Jr., Louis Brandeis, Learned Hand, Felix Frankfurter, Roscoe Pound, to name a few. Why has the received view of Langdell, founded upon a little selective evidence, gained such monumental authority?
This essay . . . [argues] that the neglect of sources has been obscured through a process of sedimentation in the published scholarship. This sedimentation occurred, I argue, because the received view of Langdell served various purposes of legal scholars at different points during the past century.
Fascinating.