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Was Langdell a Formalist?:
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.
Mark Field (mail):

In 1849 Darwin had declared that species originate by chance variation--evolution


Authors who use analogies really ought to state them correctly.
10.18.2006 3:59pm
Anderson (mail) (www):
Very plausible, and again, the kind of thing that happens in *every* discipline.

If the scholars couldn't invent and beat strawmen, the whole academic enterprise would become much too demanding. Work, even intelligence, might become necessary.
10.18.2006 4:02pm
Visitor Again:
The view I received posited Langdell as a revolutionary of sorts, as a realist who insisted we should learn the law by looking at how actual controversies are resolved in the real world and by critical discussion among professor and students rather than by reading treatises declaring abstract principles of law in a very dry manner and by lectures. The case method of teaching law, along with mandatory moot court participation requiring students to brief and argue cases, laid the way for students to understand how the law actually works, at least in the courtroom at the appellate level, where most law is "made" or at least announced (either by judicial development of the common law or by judicial interpretation of statutes and constitutions). Sure there have been developments since Langdell--courses examining the legislative process (Hart &Sachs) and the administrative process, clinical education, empirical studies, the crits and so on. But Langdell's case method remains the predominant way of teaching law in American law schools.

This view I got from my attendance at Harvard Law School from 1965 to 1968. I wonder how I got that view if the prevailing view throughout the 20th century was that he was a rigid formalist divorced from the real world. I recall Harvard Law professors during my time there praising Langdell, among them many legal realists, and nearly all of them used the case method of teaching law. Perhaps HLS professors were not then willing to deride the man after whom the institution's main building, Langdell Hall, is named and whose teaching method they still followed. Perhaps the derogatory view came from Yale Law School.
10.18.2006 11:56pm
Randy R. (mail):
Was he a formalist?

I don't know and I don't care.

Dmitri Shostakovich was one of the greatests composers of the 20th century. After the premier of his opera, Lady MacBeth of the Medsenk District, there was an anonymous review written in Pravda, denouncing him as a 'formalist.' Historians widely suspect Stalin himself wrote the review. It cast a pall upon the composer for the rest of like, worried that he would be carted away some night like so many of his friends. Other party apparachiks echoed the claim that he was a formalist, even though no one could really say was a musical formalist is, and why that's bad. No matter -- it made Shostakovich afraid, and he was ostrasized by many.

So I just always shudder when I hear the charges of formalism brought against anyone. Call me irrational.
10.19.2006 1:06am
OrinKerr:
Great comment, Visitor Again.
10.19.2006 2:25am
Randy R. (mail):
I think that the case method teaching law is great -- for upper classmen. For 1ls, however, they should teach law like any other subject. Afterall, most law is pretty cut and dried in the real world. Give students the black letter law so that they can actually know something after they leave law school. Theory and case reading is really an advanced sort of teaching, in my opinion, and should be done after the basics of law have been grasped.

Don't believe me? Then why do so many 1ls resort to publically available outlines that give you the black letter law? in short, students are left to teach themselves the law, and that's a dirty scam.
10.19.2006 2:53am
Anonymous 8-Year Practicing Lawyer:
Randy, your comment shows the understanding of a sophomore in high school. Nothing about law is "cut and dried in the real world." As pointed out above, the case method teaches law students--at least those who will be litigators--how it will work in the real world. We law students--you clearly were never one--learn from the cases and the outlines. Just like in the real world, learning comes from many sources. The bottom line, however, is that law school is better than most higher-education disciplines at teaching students "real world" skills that are really used in practice. Every day as a litigator I read cases (and statutes and law review articles and treatises--but mainly cases) to find ways to advocate on behalf of my client, and it is the cases that control the outcome.

Another related point, which I believe was made above, is that the cases teach [to those who pay attention] what in the "real world" is 95% of the importance of each decision: the procedural posture of the case--i.e., exactly what relief was sought and what the trial court or administrative decisionmaker held, and what the appellate court said about it. The disposition of the case is often the most important thing, not platitudes about "blackletter law." For example, if position A is substantively correct, does that mean the case should be dismissed--or is it a matter for summary judgment because there are fact issues? If it is dismissed, should it be with prejudice?

In the real world, we really do follow the "common law" case method, still, today, whether anyone likes it or now. Only rarely will a lawyer cite to a treatise or hornbook (except, indeed, on well established principles)--and judges expect to see cases in the relevant jurisdiction cited. Thus it is essential that law schools continue to teach students, from their very first day, to read and understand appellate judicial decisions.
10.19.2006 1:23pm
Randy R. (mail):
I didn't say that ALL the law is cut and dried, just most of it.
If you are stopped by a policeman, you are either above the legal limit or you are not. Cut and dried. If you steal a loaf of bread from a supermarket, you can be prosecuted for theft. Cut and dried. If you don't pay your rent on time, you can be evicted. Cut and dried. Statute of frauds? Pretty clear law, in my opinion.

This is the real world, and most people get caught up in such minutia. I agree, there is plenty of grey areas in the law. It's just that most cases are indeed either clear violations of law or they are not. Millions of business transactions occur each and every day that are lawful, and we know that they are lawful, precisely because the law is clear. Check cashing, for instance -- what could be clearer? This is a good thing.

I passed the bar in 1987, and worked as a gov't attorney for 15 years in an administrative appellete court. most of the cases we handled were cut and dried -- very few needed even a few moments of thought or deliberation. Either you met the requirements for benefits or you did not.

I'm not saying students shouldn't learn the case method. I'm merely saying that they are putting the cart before the horse. First study what is simple and easy to understand, then move on to nuance and shading. Most disciplines do it this way. You don't learn number theory in high school -- you learn arithmetic and then algebra. Imagine trying to teach number theory first and hope that students will somehow gleam algebra from the theory!

I also teach piano, mostly beginning students. I don't start off with Mozart and Chopin. I begin with very easy pieces, and I make sure the students play in time. Later, the more advanced students learn the most difficult pieces, and then, after experience, they can play with more nuance and shading. To teach the nuances at the beginning is just too much.

And let's not forget -- law has traditionally been taught as an apprentice. What would apprentices be trusted with? Only the easiest and most cut and dried cases first. After experience, then they can learn to argue nuance and so on.
10.19.2006 3:43pm
OrinKerr:
If you are stopped by a policeman, you are either above the legal limit or you are not. Cut and dried.

I don't think that's riight. If you are below the legal limit, you can still be convicted if you are sufficiently impaired. But how impaired is enough to be sufficiently impaired? I think there is an appellate case on that with a very interesting dissent and some intriguing footnotes.
10.19.2006 9:44pm
Randy R. (mail):
No doubt true. But the point is still the same -- the law is clear, if you are sufficiently impaired. Now, the standard may be fuzzy, but the law itself is quite clear. See the difference? And sure, a good lawyer can argue that the person was the person was not impaired, but that remains a finding of fact. Findings of fact are not findings of law.

In fact, in many jurisdictions, lower trial courts can be non-lawyers! If what everyone here is saying is true, then how can non-lawyers read a law, which you all argue is NOT clear. Doesn't make sense. What does make sense is that most law is in fact pretty simple to understand and apply, and that's why non-lawyers can hold court. Ever been to a small claims court? Rarely are appellete opinions ever even raised. The few times they are, it's when they restate a clear and cut and dried matter of jurisprudence.

Dissents can be interesting, but they are not controlling. Who cares?
10.19.2006 11:44pm