By: Bruce A. Kimball
| Christopher Columbus Langdell (1826–1906) is arguably the most influential figure in the history of legal education in the United States, having shaped the modern law school by introducing a number of significant reforms during his tenure as dean of Harvard Law School (HLS) from 1870 to 1895. Langdell’s innovations—including the admission requirement of a bachelor’s degree, the graded and sequential curriculum, the hurdle of annual examinations for continuation and graduation, the independent career track for professional faculty, the transformation of the professional library from a textbook repository into a scholarly resource, and the inductive pedagogy of teaching from cases—became the characteristics gradually adopted by university law schools after 1890 and, eventually, schools of other professions. Langdell thus transformed legal education from an undemanding, gentlemanly acculturation into an academic meritocracy. | 1 |
| Due to this transformation, Langdell’s work has been discussed by members of the legal profession and academe throughout the century since his death in 1906. In fact, this discussion has intensified during the past two decades to the point that Langdell studies have become “practically a cottage industry.” At the beginning of the twenty-first century, interviews with deans of leading law schools conducted by the Modern Legal Pedagogy Project reveal that Langdell continues to be identified with either the greatest ills or the greatest strengths of law schools in the minds of eminent legal educators.1 A century after his death, analysis of Langdell is entwined with debates over the dominant paradigm of legal education, and this is why understanding Langdell is so important and so contested even today. | 2 |
| Given this importance and the decades of discussion, it is surprising that most of the original sources written by or about Langdell have only begun to be examined by scholars. These sources, discussed in greater detail below, include records from his hometown and his education in school, college, and law school; letters and case reports concerning his fifteen years of legal practice on Wall Street; bound manuscripts and notes written by Langdell or his students for the classes he taught throughout his tenure as a HLS professor; and thousands of loose manuscript pages in Langdell’s hand. Apart from these sources reposited in places where he lived or worked, additional original sources pertaining to Langdell are available in the papers of his students, colleagues, and contemporaries located in various archives. | 3 |
| These original sources are yielding a new and more complex interpretation of Langdell.2 It is becoming apparent that, after a traumatic childhood on a hardscrabble farm in New Hampshire, Langdell faced and overcame great obstacles as a “pauper scholar,” achieving both academic success and positions of leadership at Philips Exeter Academy (1845–48), Harvard College (1848–49), and Harvard Law School (1851–54). Between 1855 and 1870, he distinguished himself as a busy and effective member of the bar on Wall Street. Not only did Langdell successfully argue prominent cases with and against leading attorneys in the highest courts of New York state, he belonged to the vanguard of attorneys pioneering a new role in litigation: that of crafting the highly technical written brief that was beginning to displace oral argument in complicated cases arising in growing commercial centers, such as New York. | 4 |
| Upon returning to HLS as a professor and being named dean in 1870, Langdell introduced the inductive and Socratic case method of teaching and practiced it assiduously, while advancing meritocratic reforms in legal education over the opposition of many students, colleagues, and members of the bar. These energetic endeavors—intended, it seems, to prepare students for a new kind of legal practice requiring greater doctrinal sophistication and command of case law—subsided in the early 1880s. At that point, most of the reforms were being instituted, his eyesight began to fail, and he married for the first time. After the mid-1880s, Langdell increasingly devoted himself to teaching and studying equity, the subject that had dominated his interest and expertise from the mid-1850s. | 5 |
| Befitting the subject of equity, as well as his background as a prudent Yankee and an effective litigator and administrator, Langdell attended to the practical outcomes of legal disputes and jurisprudential questions at the same time that he was thoroughly committed to maintaining coherence in legal procedure and reasoning. This commitment apparently rested upon the justification—now emerging from manuscripts being studied for the first time—that such coherence served the end of justice. Thus, Langdell appears to say at points that judges’ attempts to render “just” decisions by abrogating consistent rules produced greater injustice to those who expected that the existing rules would apply, including other parties to the case as well as potential litigants in similar disputes. Accordingly, he did sometimes criticize judges’ decisions in particular cases as unjust. | 6 |
| Important aspects of this tentative interpretation contradict the view of Langdell that has developed over the past century. The latter presents a rather pathetic figure: a self-absorbed, reclusive, though successful, grind who failed miserably as a lawyer, ultimately fearing to leave his garret office and engage other attorneys in court. Rescued from the bar by the inexplicable intervention of Harvard president Charles W. Eliot, Langdell fled back to HLS, where he sought, almost vengefully, to remake the law school into a place that nurtured and elevated misfits like himself, who pursued logical analysis of obscure, antiquated problems and cases. “Langdellian” jurisprudence thus came to mean deductive, formalistic analysis aloof from practical outcomes or concerns of justice. Commensurately, Langdell the teacher could not have invented, practiced, or understood an inductive, Socratic pedagogy, according to the received view. By the same token, Langdell the dean was an ineffectual, intimidated administrator, merely the front man for President Eliot’s designs. Nevertheless, Langdell somehow succeeded in working his will for twenty-five years at Harvard and, vicariously, for the next century at law schools throughout the nation. | 7 |
| Elaborated over time and qualified in various ways, the received view of Langdell still predominates, notwithstanding its own inconsistencies and the challenge presented by recent revisionist scholarship. Its predominance poses the historiographical problem addressed by this essay. This “Langdell problem” comprises two paradoxical questions. | 8 |
| First, how and why has the received view developed and persisted contemporaneously with the enormous influence of Langdell and his model of legal education? In other words, how has it been possible to portray Langdell as such a loser while his educational reforms were so successful? Second, how 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? | 9 |
| This essay addresses and explains the two-fold Langdell problem by demonstrating 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. | 10 |
| This argument is made by analyzing influential or exemplary publications and identifying the sediments of Langdellian historiography, which fall into these broad periods or movements: 1906Memorials1906–1909Biographical Research1910sRevisionism1920sCounter-revisionism and Response1924–1970sAge of Caricature1980s–Reassessment and Return to the Sources This analysis includes an assessment of the validity of the various accounts in light of the available evidence and the circumstances of their writing. From this historicizing of the historiography is inferred the various purposes of legal scholars, explaining their reluctance at different points to question the received view and dig through the obscuring sediments to the original sources. | 11 |
| First, it will be helpful to know the nature and volume of Langdell’s writings. Roughly half are unpublished and consist of about 5,000 loose sheets of drafts, letters, and unidentified manuscripts, and about 2,000 pages of lecture notes in loose sheets and bound manuscripts, and about ten personally annotated copies of casebooks and treatises. Prior to 1999, no published study appears to have cited more than a few dozen pages of this material. Part of the reason for this neglect is that, through the year 2000, Langdell’s unpublished, loose papers were collected in “twelve manuscript boxes containing various groups of handwritten drafts,” which “are in disarray, and as there are no chapter or book-title headings, nor consecutive numbering of pages, it is impossible to restore the original order of this material. Moreover, the manuscripts are written in a hand so difficult as to be almost illegible to the average reader.” In 2003 these unpublished papers were reviewed carefully, in most cases identified and categorized, and reordered.3 This reordering incorporated from the Harvard University archives a separate collection of another five hundred of Landell’s unpublished, loose papers, whose original, shelf-list card read: “Langdell’s Papers, received from the Law School, 1941, and sampled by the Archives staff. Includes a few letters. Bad writing, and very hard to identify. About six times as much thrown out.” In addition to letters, the latter collection included a checkbook ledger and, for example, the lectures given by Langdell in the spring of 1883 in the course that Oliver W. Holmes, Jr., was scheduled to teach until he resigned abruptly from Harvard Law School in December 1882. To scholars seeking to develop a full and faithful interpretation of Langdell, it is tragic that some 3,000 papers—possibly including letters, financial records, and lectures—were discarded in 1941. It is also telling that this literal trashing of Langdell occurred contemporaneously with the high tide of Holmes’s “hagiography,” as discussed below. | 12 |
| The other half of Langdell’s writings are published and consist of six dictionary articles, four casebooks, three doctrinal summaries, nine independent articles in the Harvard Law Review, three brief essays about Harvard Law School, twenty-five annual reports, and four published briefs of cases. No scholar has cited more than about half of these publications.4 In sum, no scholar to date appears to have examined more than about one quarter of Langdell’s writings, quite apart from the issue of consulting observations about Langdell appearing in writings by his classmates, colleagues, students, and contemporaries. | 13 |
| It is also helpful to observe at the outset that about two-thirds of Langdell’s work as a lawyer, teacher, and scholar was devoted to procedure and equity. Another two-ninths addressed commercial law, including partnership, negotiable paper, bills of exchange, sales, and suretyship. The remaining one-ninth of Langdell’s work was devoted to the common law field of contract. These proportions are fairly consistent across Langdell’s reported litigations, his publications, and his teaching, as reported in HLS catalogs and demonstrated in Table 1. | 14 |
Table 1. Proportion of Langdell’s teachingand lecturing in domains of law, 1870– 1900Domain of lawNumber of semester courses taught, 1870–1883Number of semester courses taught, 1883–1900Total number of semester courses taughtContracts11011Civil procedure, equity pleading, procedure, or jurisdiction263460Commercial law, including negotiable paper, partnership, bills of exchange, sales, suretyship81220 Source: Harvard Law School annual catalogs foracademic years from1869–70 to 1899–1900. | |
| This background will support the demonstration below that the large majority of Langdell’s most salient writings have not yet been examined by scholars, and that, as a result, what scholars have lately come to call “most Langdellian” is, in fact, least Langdellian. | 15 |
| I. Memorials, 1906 | |
| When C. C. Langdell “died suddenly at his home … from heart disease” on July 6, 1906, the public press proclaimed him to be “the greatest teacher of law that this country has ever produced” and “one of the most widely known instructors and authors of law textbooks in the English-speaking world.” His accomplishments and reputation were regarded as so firmly established that “[t]here is no good reason to presume that this signal triumph of [Langdell’s] genius will not endure. There is little, if any, indication of a reactionary trend.”5 | 16 |
| Within a week of Langdell’s death, the Nation published a memorial by Eugene Wambaugh, who had known Langdell as a teacher and colleague for thirty years. Wambaugh’s triumphal essay became the most prominent, early assessment of Langdell, asserting that he had invented and championed case method teaching for two decades—even though this innovation was “bitterly attacked” both inside and outside HLS. In addition, Langdell introduced widely adopted innovations in academic administration, curricular organization, library development, legal scholarship, and the profession of law teaching, according to Wambaugh. Consequently, “[f]or a generation no professor’s name has been more widely known” or even earned a place “beside Professor Langdell’s at the head of the list of American scholars.”6 Wambaugh’s article was reprinted a few months later in England7 and in the Harvard Law Review, which inaugurated the professional and scholarly literature on Langdell by publishing five, brief essays that became the most consulted and quoted memorials about Langdell. | 17 |
| Along with Wambaugh, a second contributor was Austen G. Fox, a prominent member of the New York bar and one of the students personally interviewed, admitted, and registered by Langdell in October 1870, during his first semester as dean. While attending Langdell’s first class taught by case method in fall 1870, Fox joined the small student law club that endorsed Langdell’s academic reforms.8 Fox also became one of Langdell’s seven disciples, known as “Kit’s freshmen,” who attracted “much good-natured ridicule” from other students.9 A third author and another of “Kit’s freshmen” in the early 1870s and member of that student club endorsing Langdell’s reforms was James Barr Ames, who succeeded Langdell as dean of HLS.10 | 18 |
| A fourth memorial in the Harvard Law Review was contributed by Jeremiah Smith, an HLS professor who wrote several obituaries and was the only individual for the next century, apart from Ames, who examined the records of Langdell’s secondary and college education from the 1840s.11 The final memorialist was Joseph H. Beale, Jr., who had graduated from HLS in 1887 and joined the HLS faculty as an assistant professor in 1892. Given his later role as the leading “proselytizer for the Langdellian movement” both jurisprudentially and educationally,12 it is surprising that Beale’s praise of Langdell’s scholarship, teaching, and intellect was distinctly qualified, although Beale accorded to Langdell more credit for the administrative reforms at HLS than did other observers, who acknowledged the role of President Eliot. Thus, Beale’s assessment was curiously uneven and converse to that of other commentators.13 The other memorialists, drawing primarily upon their personal observations of Langdell, were thoroughly laudatory. | 19 |
| II. Biographical Research, 1906–1909 | |
| Even as the memorials appeared, certain authors began following the lead of Jeremiah Smith and undertaking research in order to produce a biography of Langdell. However, their research was pursued divergently and incompletely, yielding different data and emphases. The biographical essay quoted most often over the next century was written in the three weeks following Langdell’s death by Samuel F. Batchelder. Originally composed on stationary at his country club and published in The Green Bag, A Useless but Entertaining Magazine for Lawyers, Batchelder’s sixteen-page account was transmitted to many other sources via Charles Warren’s History of the Harvard Law School and The Centennial History of the Harvard Law School, 1817–1917. Meanwhile, Batchelder’s essay was consulted directly for many scholarly works, including The History of Legal Education in the United States (1999).14 | 20 |
| Langdell had known Batchelder personally as a student at HLS between 1895 and 1898 and as the clerk of Christ Church, Cambridge, where Langdell and his wife were longstanding members. In addition, Batchelder was the grandson of HLS professor Emory Washburn, who served on the HLS faculty from 1855 until 1876 and opposed most of Langdell’s reforms in the early 1870s. Given these personal ties and the fact that the semi-retired Langdell was nearly blind and no longer a source of inspiration for the students when Batchelder attended HLS, the images of Langdell conveyed to Batchelder were mixed.15 | 21 |
| In addition to his personal knowledge, Batchelder corresponded with a number of individuals about the various periods of Langdell’s life.16 While this approach was industrious, given Batchelder’s time constraint of three weeks, there were drawbacks to reliance upon anecdotal sources unverified by documentary research. Inaccuracies were introduced; some of the anecdotal material was second or third hand; and the testimony was influenced by the personal animus of some individuals, such as Joseph H. Choate and Emory Washburn, who seem to have begrudged Langdell’s influence and reputation.17 | 22 |
| In fact, Choate’s and Washburn’s depreciating accounts of Langdell’s experience at the bar in New York City from 1855 to 1870 were embellished by Batchelder into a portrait of a naïf, unready for the courtroom and unduly trusting in knowledge from books. Batchelder called Langdell a “sensitive spectacled student [who] found at the very outset of court work that the acutest legal mind, unsupported by practical legal experience, is no match for the tricks of the legal sharper.” Contrary to the evidence now available, Batchelder extended this depreciating view by speculating that, early in Langdell’s legal practice, the loss of several cases in succession was “too much for his pride. He flatly and finally withdrew from the courthouse and gave himself up to office work and research.”18 | 23 |
| Overall, Batchelder’s narrative portrayed Langdell rising from obscurity, struggling against adversity, and successfully reforming HLS. To accentuate the triumph, Batchelder lathered up Langdell’s personal limitations, inexperience, and obstacles. But these points, ironically, would later be invoked to undermine the most deeply evidenced, detailed, and creditable part of Batchelder’s account, describing the Socratic and inductive nature of Langdell’s case method and the innovative hypothetical character of his written exams.19 Langdell’s detractors would later reason that someone so flawed could not be responsible for these incisive reforms. | 24 |
| Batchelder’s description of Langdell’s new pedagogy and examinations is confirmed by the testimony of several witnesses, who also contributed to the profusion of biographical research between 1906 and 1909. One such author was William Schofield who had graduated from HLS in 1883, taught at HLS from 1886 to 1890, and been appointed to the Massachusetts Supreme Judicial Court in 1903. Schofield’s twenty-four-page article was called “the best and most elaborate account” of Langdell’s teaching by Charles Warren.20 Aside from its first-person testimony, the merit of Schofield’s article lay in its balanced and forthright tone. Even when describing the Socratic and inductive nature of Langdell’s case method that he had witnessed, Schofield seemed to be striving not to lionize the dean, but to present a faithful and nuanced recollection, while noting Langdell’s eventual abandonment of case method due to the deterioration of his eyesight, beginning in about 1880.21 | 25 |
| An additional merit of Schofield’s essay was its attention to Langdell’s publications and brief consideration of how these related to his teaching and his intellectual viewpoint.22 Several of the publications would not be examined again by scholars writing on Langdell for the next eighty years. In fact, the very existence of Langdell’s first publications—six articles in John Bouvier’s respected Law Dictionary—was forgotten after Schofield.23 | 26 |
| Even as Schofield was preparing his article for publication in May 1907, James Barr Ames was expanding his earlier statements into a twenty-five-page essay that served as “the most complete biographical source” on Langdell for the next century.24 Ames became Langdell’s leading student, championed his academic reforms, and succeeded Langdell as dean in 1895. Writing for the multivolume collection Great American Lawyers, Ames made the greatest efforts at research to that point, visiting Langdell’s hometown in New Hampshire, corresponding with his sister in Kansas, and consulting the Harvard College archives.25 In addition, Ames reviewed the largest, single collection of Langdell’s letters surviving to the present day, a collection that no scholar cited for the next ninety years. From these letters, Ames identified the only two cases on which Langdell was long known to have worked.26 Based on this research, Ames devoted the first half of his essay to Langdell’s life up to his appointment as dean in 1870 at the age of forty-four. | 27 |
| In the second half of the essay, Ames discusses Langdell’s career after 1870, including his writings, teaching, administrative work, and, finally, Langdell’s personality and private life.27 The data are drawn primarily from Ames’s personal observations and experience, which were highly favorable; but this favorable judgment may, ironically, have led Ames to detract from Langdell’s contributions. Whereas Batchelder’s intent to extol Langdell prompted him to emphasize the early barriers that Langdell faced and the contrasting magnitude of his later work, Ames, the Boston Brahmin and Victorian, subtly minimizes Langdell’s difficulties and limitations. He shies away from relating the mean details of Langdell’s early life, omitting description of the poor family farm and softening or avoiding references to the troubled father. This Brahmin attitude is shown clearly when Ames, rebutting his own presumption that Christopher’s youthful work as a mill-hand was demeaning, hastens to note that “the quality of the mill-hand” was much better “sixty years” ago.28 Similarly, Ames avoids discussing Langdell’s developing blindness, even though this is crucial for understanding the contrasting assessments of Langdell’s teaching made early and late in his career. In this way, Ames minimized what others called Langdell’s “defect.”29 | 28 |
| Contemporaneous with, but apparently independent of, Ames’s essay was the final source in the early period of biographical research on Langdell: Charles Warren’s History of the Harvard Law School, which contributed the most careful review of the institutional records of Harvard University and Harvard Law School. This review included nearly sixty pages devoted to HLS in the early 1850s, when Langdell attended, and nearly a hundred pages concerning the institutional and pedagogical changes wrought at HLS during Langdell’s deanship, 1870–1895.30 | 29 |
| Warren’s narrative includes copious quotations from the official records and, less often, from published commentary by participants in the events. The most significant personal testimony contributed by Warren on these topics was a collection of letters written during 1907 and 1908 by alumni, many of whom knew Langdell during his three years of study at HLS from 1851 to 1854. A few of these letters lamented the tendency “to glorify the condition of the Law School during the Langdell régime and to depreciate correspondingly its condition under the previous régime.” Warren was therefore prompted to inaugurate a revisionist interpretation of Langdell, announced by an apt phrase from the poet Horace: “the graduates since 1870 [ought] to remember that there were indeed ‘kings before Agamemnon.'”31 | 30 |
| In 1908 Warren thus initiated a reaction against the celebratory literature of Langdell. He discounted “[t]he prevailing ideas that the Law Library was brought into existence later under the Langdell regime, and that it was not of much account prior to that time.” Regarding Langdell’s innovation of case method teaching, Warren maintained that the professors’ pedagogy during the 1850s incorporated “the germ of the Case System idea, introduced twenty years later.” In a chapter entitled “Eliot and Langdell,” Warren countered the tendency to credit solely Langdell for the institutional transformation of HLS by discussing “the most important innovations introduced by President Eliot and Dean Langdell.”32 Nevertheless, over the last forty pages of Warren’s account, addressing Langdell’s teaching and his administration from 1882 until 1895, Eliot recedes into the background and Warren celebrates “Langdell’s scheme of legal education.”33 | 31 |
| In the brief period of biographical research, Batchelder, Schofield, Ames, and Warren attempted to gather evidence about Langdell. But they did so independently and thus drew upon different sources, yielding different data and emphases about Langdell. In various ways, they also began to engage the interpretation of Langdell’s “defects” or shortcomings that the memorialists had disregarded. | 32 |
| III. Revisionism, 1910s | |
| Following the period of biographical research, two institutional monographs were written over the next decade that profoundly shaped future consideration of Langdell. Without providing new research, they extended and codified the revisionist interpretation initiated by Charles Warren. | 33 |
| In 1913 the Carnegie Foundation for the Advancement of Teaching commissioned Josef Redlich, a German-trained law professor at the University of Vienna, to study and “pass judgment upon the nature and success of the so-called case method.” Having toured the United States in 1910, Redlich returned for several weeks in late fall of 1913 to conduct this Carnegie study by visiting ten of the some 125 law schools at the time, including Harvard, Columbia, Michigan, Chicago, Northwestern, and New York University.34 Anticipating these visits, the deans of several of the schools wrote to HLS Dean Ezra R. Thayer expressing concern “that an Austrian professor will be deeply wedded to the German system of instruction by lectures and that he will approach the case system, which we use, with very little sympathy….” Thayer agreed, but responded that “the Carnegie people are bent upon having this done, and I do not see anything for the rest of us to do but submit and look pleasant.”35 Consequently, each school agreed to be visited by Redlich, whose final report was oddly inconsistent in regard to Langdell. | 34 |
| At the outset, Redlich’s extensive discussion follows the memorialists and the biographers in asserting the originality and Socratic character of Langdell’s case method.36 Then, in a section subtitled “Shift of Emphasis under Langdell’s Successors: Training the Legal Mind,” Redlich announces the unprecedented view that Langdell’s successors had shifted “to a completely changed conception of the purpose” of case method teaching.37 Redlich associates the shift most closely with William A. Keener, who attended HLS from 1874 to 1877, taught there beginning in 1883, and moved in 1890 to Columbia University Law School, which he reformed along the lines of HLS during service as dean from 1891 to 1902. Redlich maintains that Langdell was concerned simply with transmitting doctrine, whereas Keener developed case method into “the intellectual training necessary for … a specifically legal manner of thinking.” This unprecedented attribution to Keener of “training in characteristically legal thinking” is not only surprising, but perplexing in view of Redlich’s immediately subsequent association of this “completely changed conception of the purpose of legal education” with James Barr Ames.38 | 35 |
| The shift posited by Redlich provided the cue for the second, revisionist monograph of the 1910s: The Centennial History of the Harvard Law School, 1817–1917. In 1918 this tendentious volume—the most influential source in determining future interpretations of Langdell—was issued in 4,000 copies that HLS officials expected to “last us for many years.” But the print-run was exhausted by 1925 because copies were sent to every member of the HLS alumni association and to most university law libraries, and a new printing had to be arranged.39 By that point, those responsible for preparing the Centennial History regarded it as codifying the history of HLS prior to 1917 and saw little need for consulting any other work, such as “Warren’s production.”40 This eclipse of Charles Warren’s longer, deeper, and more careful history then passed into the literature, wherein scholarly writings for the next eighty years have often relied, directly or indirectly, upon the characteristic interpretation of the more easily accessible Centennial History and neglected Warren’s history.41 Indeed, the Centennial History is today commonly called “the official history of the Harvard Law School.”42 | 36 |
| On its face, the Centennial History appears uncontroversial and reliable, given its bland institutional origin, the anonymity of authorship, and the numerous appendices filled with facts and data. But several factors suggest caution. The volume was produced as a promotional monograph making the case to establish an endowment for the school.43 Apart from occasional, general acknowledgments of sources, the work is undocumented, although long passages of text are copied or closely paraphrased from other sources. In addition, the volume is internally inconsistent, for the interpretation of Langdell in the biographical appendix is at odds with that in the narrative history. These cautionary points, combined with its influence, make the Centennial History worthy of some analysis. | 37 |
| The HLS archives reveal that the four-hundred-page volume was a composite work, coordinated by Zechariah Chafee, Jr., later famous for his writing on freedom of speech. Chafee was hired in 1916 as an assistant professor and saddled with the task of administering the many, irksome details of producing the volume.44 The guiding architect for the monograph was Joseph H. Beale, who assigned to various professors the tasks of writing the appended biographies of deceased faculty members. Above all, Beale wrote anonymously the three opening chapters, which set forth a 120-page, narrative history of the institution, the instruction, and the library.45 This material codified the most easily accessible and seemingly authoritative version of HLS history, while it also presented a persistent and unprecedented effort to minimize the contributions of Langdell and to elevate the accomplishments of Ames. | 38 |
| Langdell’s vision of educational reform was portrayed as stillborn, needing “an Ames to catch up his idea and touch it with life.” In particular, “[t]hat development of the Langdell system which was finally adopted as the best method was the invention of Ames … Ames as a teacher had the good qualities which Langdell lacked. His mind was broadly trained, full, and ready, and moved rapidly enough to keep the interest of the class alive…. Like Socrates himself, he desired to open the eyes of his students and let them discover the truth for themselves.” In these words, Beale embraced and altered the revisionism of Redlich. True, Langdell had never really practiced or fathomed case method, held Beale; but it was not Keener who led the way or even kept pace. Ames pioneered the transformation, and “Keener followed it.”46 | 39 |
| Ames’s eclipse of Langdell was not limited to case method. Beale credited Ames, as much as Langdell, with establishing the admission standard of a college degree and thereby elevating legal education to the graduate level. Even building up the law library—previously considered Langdell’s favorite project—was attributed primarily to Ames. Founding the Harvard Law Review was likewise credited particularly to Ames, although the Review emerged from the students’ Langdell Society and although the opening issues of the Review do not mention Ames and speak of Langdell in the most glowing terms.47 | 40 |
| The revisionism of the Centennial History and the Redlich Report are unmistakable. Keener never attributed to himself, or even identified, a shift away from Langdell’s case method “to a completely changed conception of the purpose of legal education.” In fact, Keener in 1895 warned against “the present danger … of a counterfeit method” leading some “to misunderstand the true nature of the Langdell theory of teaching.”48 If Keener introduced any change in case method, it was in deemphasizing the inductive approach and imparting more doctrinal material. Thus, he explicitly balanced the purpose of developing “the student’s reasoning power … of legal analysis and synthesis” with “the other object of legal education namely, knowledge of what the law actually is.” As a result, Keener was criticized by the Harvard Law Review for incorporating too much textbook material in his casebooks and moving away from “the case system pure and simple.”49 | 41 |
| None of the earlier observers mentioned the shift described by Redlich and Beale or attributed a catechetical or rote character to Langdell’s case method teaching. In 1886 Oliver Wendell Holmes, Jr., recalled that in 1882 he had successfully taught with one of Ames’s casebooks and “Mr. Langdell’s method.”50 Here was the perfect opportunity to credit to Ames a shift or refinement in “Langdell’s method” by the mid-1880s, but Holmes did not. Nor did Ames himself, Joseph D. Brannan, William Schofield, or Louis Brandeis, who had been a classmate and study partner of Keener, as well as a student in Langdell’s classes.51 Consequently, the revisionist thesis about a shift in the purpose or nature of case method originates in the 1910s with the Redlich Report and the Centennial History. | 42 |
| The explanation for this historiographical shift begins with the fact that in the early 1880s Langdell’s personal mode of teaching changed. With his eyesight rapidly deteriorating, he gave up Socratic questioning and began to lecture, imparting his own analysis of the cases that students were assigned to read. Many students later noted the change, as did Beale himself.52 | 43 |
| In 1892, near the end of Langdell’s tenure as dean, Beale joined the HLS faculty full-time and subsequently achieved prominence under the guidance of Langdell’s successor, Ames. It was Ames who nominated Beale to serve as founding dean of the University of Chicago Law School and arranged for his leave of absence from 1902 to 1904 in order to take up the post. Ames thus served as the mentor and patron of Beale, who later recalled, “To this day, I can hardly speak of him without a tremor in my voice. He must have realized this devotion to the students meant his own failure to gain lasting distinction as a scholar and yet, instead of furthering his own fame, he preferred to rouse to flame the minds of many students.”53 After returning from Chicago, Beale joined Samuel Williston and Ames in constituting “the Executive Committee” of the HLS faculty. The triumvirate of Ames, Beale, and Williston collaborated until Ames suffered a nervous breakdown in late 1909 and died early in 1910, leaving Beale, in his own words, “almost stupefied” with grief.54 | 44 |
| In certain obituaries and memorials of Ames, there was intimated for the first time the view that not Langdell, but “Prof. Ames developed the ‘Harvard’ system or ‘case system’ of teaching law which is the best recognized modern method”55 because Ames “aimed not so much to impart information, as to develop the analytical powers of the men, to make them think as lawyers.”56 In contrast, however, other eulogists did not credit Ames in this regard at all, or even cautioned against heeding all that “has been said … by those who came under … Professor Ames’ method of teaching law.”57 | 45 |
| The mourning for Ames was scarcely finished in 1913, when Josef Redlich visited law schools in the United States for his Carnegie study, and Beale and his former classmate Williston were the senior, active professors on the HLS faculty. For the two-day visit to each school, Redlich had asked to witness the classes in Contracts and Constitutional Law; but Dean Ezra R. Thayer ignored Redlich’s request and shepherded him to different classes taught by Beale and Williston.58 This provided the opportunity for Beale and Williston to explain to Redlich that their mentor Ames had eclipsed the teaching and decanal work of Langdell, whom they had never known in his prime. | 46 |
| The role of Keener, proposed by Redlich, can be explained by factors analogous to those at HLS. Keener died in April 1913, an event that focused attention upon his accomplishments at Columbia University Law School, where he was regarded as the leader of “the revolution of 1891.”59 Six months later, Redlich visited Columbia, the first law school on his itinerary, and met Dean Harlan Stone, who had been worried about Redlich’s evaluation. Stone provided Redlich “with a good deal of material relating to the case method of instruction and the development of both Harvard and Columbia Law Schools.”60 Here was the perfect opportunity for Stone, and others at Columbia, the largest university law school in the country, to affirm that their Keener had surpassed Langdell’s method. Such an affirmation would have been welcome to Redlich, whose chief qualification was his absence of allegiance to a particular American school and who, therefore, was receptive to balancing the preponderance of attention that had to be devoted to Harvard in his report.61 The purposes of both Stone and Redlich were served by the thesis that Keener developed “a completely changed conception of the purpose” of case method teaching. | 47 |
| Back in Cambridge, the anomalous, Keener thesis was nowhere mentioned, let alone credited. It was Ames whom Beale cast in the leading role in the narrative of the Centennial History, which was apparently shaped by several factors. First, there was Beale’s recollection of the mid-1880s, when Langdell’s teaching was eclipsed by Ames’s and Keener’s. In addition, there was the new interpretation launched in eulogies of Ames, attributing to him a transformation of case method. Even more influential was Beale’s purpose of extolling Ames and rectifying the injustice that Ames’s “devotion to the students meant his own failure to gain lasting distinction.”62 Fourth was Beale’s purpose to solicit financial support from alumni of his generation, then in their fifties, who had never know Langdell in his prime and looked instead to Ames. | 48 |
| While the Redlich report and the Centennial History introduced in the 1910s the revisionist view that Langdell did not truly practice or understand his invention of case method, a competing revisionist view that Langdell did not invent the method at all was increasingly heard. This latter revisionist view that case method was a longstanding pedagogy was expressed by those who dismissed the new style of teaching or begrudged the stature of Langdell or HLS. For example, Langdell’s long-time detractor Joseph H. Choate maintained that “every great lawyer in the times that preceded [Langdell’s] establishment of [case method] at Harvard had perfected himself in that way, by the study of cases.”63 Among the opponents of case method at other law schools, the most prominent and insistent figure making this claim was Simeon E. Baldwin of Yale who repeatedly depreciated the Harvard innovation on the grounds that teaching with cases had long been conventional in all law schools and originated not with Langdell but, remarkably enough, a Yale graduate, Zephaniah Swift.64 Such claims induced other law schools to invoke their favorite sons, as when the University of Mississippi asserted that Lucius Q. C. Lamar introduced “three years before Christopher Langdell … a method of teaching from adjudicated cases that was in essence the very same as the Case System.”65 All such assertions were put in doubt as they multiplied and as they received scrutiny, revealing about Lamar, for example, that “none of the cited material supports” the claim.66 | 49 |
| The revisionism of the 1910s thus staked out a number of positions, several of which were inconsistent but all of which shared the purpose of demoting Langdell. Particularly in regard to his signature teaching method, the revisionists maintained that Langdell did not invent case method or that, if he did, then he did not really practice it or that, if he invented and practiced it, then he really did not understand its nature and purpose. Demonstrated by their inconsistency, the purpose of these efforts was apparently to elevate a revered mentor, as in the case of Beale, or the favorite son of a law school, as with Columbia or Mississippi, or generally to demonstrate that “not literally all good things are first thought of in Cambridge.”67 | 50 |
| IV. Counter-revisionism and Response, 1920s | |
| The visibility and wide circulation of the revisionism appearing in the Redlich Report and Centennial History prompted two individuals to write counter-statements. The two authors attempted to “to give some accurate description of those days” early in Langdell’s administration and teaching, based upon their participation in the events.68 Though not explicit, the corrective purpose is evident from the substance, tone, and circumstances of these two, lesser-known essays that appeared together in the Harvard Law Review in 1920. | 51 |
| One author was Charles W. Eliot, then retired, who had written in 1915 to the head of the Carnegie Foundation that, in his forty years as president, “the putting of Langdell in charge of the Law School was the best piece of work I did for Harvard University,” along with two other reforms.69 Addressing primarily the curricular and administrative changes, Eliot portrayed Langdell as the initiator and responsible agent.70 The subject of Langdell’s teaching dominated the accompanying article by Franklin G. Fessenden, a Massachusetts Superior Court Justice, whose longstanding relationship with both Langdell and Eliot is illuminating. In September 1870, Fessenden arrived at HLS where he was personally interviewed by Dean Langdell, enrolled in the first course taught by case method, and joined the group of seven devotees known as “Kit’s Freshmen.”71 As the enrollments in Langdell’s case-method courses tumbled to a few students, President Eliot took the extraordinary step of calling students, including Fessenden, into his office to ask their opinion of Langdell’s classes. “Fessenden, a first-year student of about three months, was flabbergasted, but he swallowed his astonishment and said, ‘Well, Mr. President, I can go to Prof. Washburn’s lectures and hear him read a chapter from his book on real property. I can go to Prof. Parson’s lectures and hear him read a chapter from his book. But I learned to read before I came down here. When I go to Prof. Langdell’s lectures, I get something that I cannot find in any book.'”72 | 52 |
| Drawing upon such experiences as a student in the early 1870s and as a teacher at HLS in the early 1880s, Fessenden began working on his counter-revisionist essay soon after the appearance of the Centennial History in 1918 and sent drafts to Eliot, Dean Roscoe Pound, Samuel Williston, and a few older alumni. After considering where the article would “carry farther,” Pound, Eliot, and Fessenden arranged for publication in the Harvard Law Review.73 Fessenden’s essay maintained that increases in admissions criteria, academic standards, and intellectual seriousness “originated with Langdell and meant an entire change” in the School, and such changes were “condemned in advance by practically all.” In regard to teaching, he asserted that “[t]he result of the method of Langdell was active search and inquiry; that of the other professors was passive absorption.” Langdell achieved this result, in part, because, in responding to students’ misdirected replies, “Langdell had the rare gift of making remarks in a way which would indicate the real question, without discouraging pertinent inquiry.”74 In contrast to Redlich’s and Beale’s thesis that Keener or Ames introduced the new purpose of developing legal thinking, Fessenden asserted “that Langdell was not undertaking at all to state what the rules of law were, that his real purpose was to incite the young men before him to find them by their own researches, and that he felt his own opinions to be of no consequence when compared with the importance of leading them to think and form their own judgments.” Pointedly, Fessenden concluded, “It has been intimated that he was not a great teacher—but not … by those who had the great privilege of sitting under him in the early years of his professorship, when he was at his best. Later, as his eyesight became impaired, he was driven to give up the best of his method and lecture.”75 In this fashion, Fessenden offered the most detailed account of Langdell’s teaching in the early 1870s, which Eliot called “all true.”76 | 53 |
| Although the counter-statements of Fessenden and Eliot would do little to impede the influence of the highly visible Redlich report or Centennial History,77 Beale apparently felt the need to respond.78 A perfect opportunity arose in 1928 when Samuel E. Morison invited him to write a historical account of Harvard Law School for a volume of essays.79 In drafting his account, Beale sharpened his claim that Ames was the real pedagogical innovator and built up to an extraordinarily sentimental paean for “the beloved Dean” Ames in contrast to “the first Dean” Langdell.80 | 54 |
| Beale sent the draft to Chafee, his junior collaborator on the Centennial History, who questioned Beale’s elevation of Ames above Langdell.81 Others apparently had similar reservations because Beale’s essay never appeared in Morison’s collection. Instead, a chapter was prepared by Dean Roscoe Pound, who prepared a catalog of Langdell’s “achievements”: “introduction and establishment of the method of teaching from adjudicated cases; advance in requirements for admission…; a regular system of examinations and definite requirements for graduation; organization of the curriculum on a reasoned basis; organization of the administration of the school; and the building up of a law library. …”82 | 55 |
| Not to be denied, Beale made another influential attempt at codifying the revisionist view. In 1931 he published in the New York University Law Quarterly Review an article presenting brief portraits of the four professors who had spanned the last quarter of the nineteenth century during the transformation of HLS: Langdell, Ames, James B. Thayer, and John C. Gray. Drawing language from his essay rejected for Morison’s collection, Beale canonized Ames, who “devoted his life to his students. He taught them the law, he helped them in all their troubles, he became their dear friend and their model of honor and uprightness…. They called him ‘The Good Dean,’ and they loved him as few teachers have been loved. To this day, I can hardly speak of him without a tremor in my voice.”83 In contrast, Langdell was contemptibly portrayed as “a rather helpless-looking figure.” His mind was that of a “careful plodding … medieval-minded recluse”; his case method was merely the unsocratic quizzing of antebellum recitation inasmuch as the purpose of “his teaching method was to question students in order to make sure they had read their cases.” In character, Langdell was described as self-absorbed, for he “had a weakness for his own legal ideas, and rather resented having any one else express them.”84 | 56 |
| Overall, these exchanges between Beale and the counter-revisionists during the 1920s seem to be explained primarily by the personal allegiances of the proponents and the periods and circumstances in which they knew Langdell. An additional factor contributing to Beale’s particularly derogatory view published in 1931 was likely the shift in ideological context. Beale may have been trying to break the association of “Bealism” with Langdell’s education and jurisprudence.85 By 1931 to praise or credit Langdell was to risk being identified with his caricature that was becoming fashionable amid the Pragmatic and Realist turn in jurisprudence occurring in the 1920s and 1930s. Samuel Williston’s writings on Langdell exhibit a similar purpose of dissociating Langdell from all that was good at HLS in view of the development that Langdell represented to the Realist vanguard all that was bad in jurisprudence.86 | 57 |
| These factors of personal allegiance, circumstances of acquaintance, and ideological purpose appear to explain Fessenden’s and Eliot’s counter-revisionism and Beale’s response. Nevertheless, it was Beale’s that became authoritative and was recently reprinted in The History of Legal Education in the United States (1999).87 | 58 |
| V. Age of Caricature, 1924–1970s | |
| The inconsistency between the elevating and depreciating interpretations of Langdell prior to 1930 was resolved by the high profile and wide circulation of both the Redlich Report and Centennial History, which established the putatively reliable account of Langdell for decades to come. Drawing directly or indirectly from those two sources, even the most careful and informed scholars would still be saying at the end of the twentieth century that, for example, “Langdell’s … disciples, especially James Barr Ames and William A. Keener, developed what we recognize today as the case method of legal education.”88 This proposition—never asserted prior to 1910—acts virtually as a chemical tracer through the historiography for the influence of the revisionist view. | 59 |
| Beyond being codified, the revisionist interpretation was flattened and formalized into a caricature repeated in subsequent decades. The caricature was then taken for granted both because of its repetition and its utility in casting Langdell as the exemplar of “classical legal thought” or “classical legal formalism.”89 In this way, the caricature became not a conclusion drawn from examining the evidence about Langdell, but a premise about how to interpret Langdell’s writings, only a fraction of which were examined and then but rarely. Ultimately, original evidence about Langdell could be dismissed on the grounds that it did not fit what scholars knew “Langdellian” meant.90 The following discussion addresses four writings exemplifying and advancing the caricaturization of Langdell over the second and third quarters of the twentieth century. | 60 |
| Langdell’s caricature was ushered into the literature in 1924 when Batch-elder revised his popular 1906 essay for a collection entitled Bits of Harvard History, which closed with two of his best known articles. First was “Wanted!—’College Characters'” in which Batchelder described colorful individuals who made Harvard “as full of characters as a novel by Dickens.” These included “Clary, the darkey janitor,” as well as the fruit-peddler “‘John the Orangeman,’ a native of County Kerry.”91 From “Clary the darkey janitor” and “John the Orangeman,” it was only a step to another contemporaneous “college character” of Scot-Irish descent portrayed in the closing chapter of Bits of Harvard History: “Langdell, Iconoclast.”92 | 61 |
| Batchelder prepared “C. C. Langdell, Iconoclast” for publication not by canvassing the results of biographical research that had been published since 1906, but by drawing from the Centennial History a brief list of points, which he then added as changes and footnotes on a copy of the 1906 essay.93 These few changes accentuated Langdell’s retiring nature and “awkward countrified manners” and incorporated the revisionist view that “It was Ames who fully developed the Socratic method of teaching: Langdell never encouraged much discussion in class, and in later life was so brimful of his subject that he confined himself entirely to straight lecturing.”94 | 62 |
| As a result, Batchelder’s revision was oddly inconsistent. It preserved nearly all of his triumphal 1906 essay, with its account of Langdell’s highly Socratic and inductive method from the early 1870s, while also incorporating the detracting revisionist view.95 Batchelder then solicited feedback from the acknowledged authority on Harvard Law School history, Joseph Beale, who recommended only minor changes.96 In this way, Batchelder stamped reclusiveness and self-absorption into a Langdellian “college character” that became more widely available than the 1906 version published in The Green Bag, A Useless but Entertaining Magazine for Lawyers. | 63 |
| This caricature—cobbling an iconoclastic, rigid, reclusive personality with the central thesis of the Centennial History elevating Ames and demoting Langdell—was highly serviceable to the Realist or “functionalist” movement of jurisprudence that attracted widespread attention in the 1920s and dominated jurisprudential debate in the 1930s and 1940s.97 By “increasing the stress laid upon the practical social or economic effect [or cause] of deciding a given legal problem in one way or another,” the Realist movement discounted “the value of analytical logic as a solvent of legal problems” and championed a “revolt against the method sponsored by Langdell as a means of prophetic determination of the law.”98 This revolt was served by the revisionist portrayal of Langdell as a maladjusted, self-absorbed logician, who did not create, understand, or practice case method. A warped personality befitted a rigid mind that rendered an artificially narrow jurisprudence transmitted by dogmatic teaching. | 64 |
| The Realists’ view of Langdell was authorized not only by the revisionist interpretation, but also by their patron saint Oliver Wendell Holmes, Jr., who had characteristically gibed Langdell in certain aphoristic appraisals. Most notably, Holmes in 1880 criticized what he considered to be Langdell’s rigidly logical approach to jurisprudence, pointing particularly to Langdell’s passing comment that “substantial justice and the interests of the parties” were “irrelevant” to analysis of the mailbox rule in contract law. This logical “habit of mind” led Holmes to call Langdell “the greatest living theologian” and to issue the reprimand: “The life of the law has not been logic; it has been experience.”99 The latter aphorism, subsequently enshrined in the opening lines of The Common Law, became “the most famous Holmes’ quotation of all” and “the most famous sentence he ever wrote”100 and contributed to casting Langdell and Holmes as antithetical throughout the second and third quarters of the twentieth century. | 65 |
| Holmes’s jurisprudence is now understood to incorporate many divergent and contradictory themes, and his relationship with Langdell is no less complex. Such nuances were generally overlooked by the Realists in extracting and disseminating a uniformly derogatory view of Langdell drawn from Holmes’s writings during the 1930s when “Holmes hagiography was at its flood.”101 The high water mark was reached at the end of the decade with the literal trashing of Langdell’s presumptively worthless papers at the Harvard archives, while the mere notices and jottings of Holmes were being edited and published for a receptive scholarly audience.102 Meanwhile the debate over legal Realism moved to center stage, prompted significantly by the writings of Jerome Frank, which became the “locus classicus” identifying Langdell as the personification of jurisprudential and educational error.103 An early self-proclaimed Realist, Frank was noted for his psychological functionalism. Whereas other Realists emphasized the social and economic functions served by law, Frank maintained that judges’ decisions were shaped primarily by their own psychological purposes and traits and he entitled his classic work Law and the Modern Mind.104 | 66 |
| Focusing upon Langdell in 1933, Frank identified the source of artificial and immature jurisprudence to be legal education that “is founded upon the ideas of Christopher Columbus Langdell,” whereby “law-school law came to mean ‘library law.'”105 True, Langdell’s study of cases emulated an empirical, rather than logical, approach, said Frank. But the written case reports, constituting “data” in Langdell’s supposedly scientific case method of teaching, disclosed only the concluding judicial decisions, not the psychological, social, and economic forces actually constituting a “case.” Nevertheless, Langdell’s model became normative, and “for some three decades it was almost impossible for a man to obtain a legal education in a [university] law school that was not Langdellian.” This “Langdellian training” exclusively addressed “the very limited (although real) importance in the actual legal world of so-called substantive law and of so-called legal rules and principles” and neglected the primary role of psychological, social, and economic forces.106 | 67 |
| Faithful to his psychological hermeneutic, Frank attributed Langdell’s model of legal education to “that man’s peculiar temperament” and “idiosyncrasies.” In support of this interpretation, Frank reported evidence and quoted description of Langdell’s “peculiarly secluded life,” his “obsessive and almost exclusive interest in books,” and his lack of experience or success in “the rough-and-tumble activities of the average lawyer’s life,” all drawn from “his biographer.” This unidentified biographer was none other than the “official historian of Harvard Law School” who wrote the Centennial History107 and incorporated the account of Langdell’s legal practice from Batchelder. In this fashion, the obscuring sedimentation of the literature commenced, as scholars began to read and cite sources only in the layers deposited just prior to them. Ironically, they did this in two opposite ways by the 1930s. On the one hand, those rejecting the HLS model, such as Frank, identified it with Langdell; on the other hand, those advocating the HLS model dissociated it from Langdell and attributed it to Ames. The one consistent theme was depreciation of Langdell. | 68 |
| Frank was oblivious to the irony because he selected only evidence suitable for his argument, making little attempt to survey the available historiography and no effort to seek out original sources concerning his fundamental premise that Langdell had had little experience or success in practicing law and litigating cases. Despite the selective evidence, Frank’s psychological interpretation, anticipated by Beale’s writings, was widely credited; and the layering of sources is demonstrated by Frank’s 1947 article in the Yale Law Journal. Repeating and extending his argument of fourteen years earlier, Frank sharpened his rhetoric, calling Langdell “a brilliant neurotic” and asserting that “the neurotic escapist character of Langdell stamped itself on the educational programs of our leading law schools.”108 For documentation, Frank cited his own 1933 article and the Centennial History. The deepening sedimentation of sources is shown by Frank’s writings subsequently being invoked as credible testimony of Langdell’s maladjusted character.109 | 69 |
| Jerome Frank’s writings thus exemplify the caricaturization of Langdell occurring in sophisticated discussion at the intersection of the profession and academe during the 1930s and 1940s. Equally significant is the appearance of the caricature in an acclaimed work of specialized, original research addressing the period of Langdell’s most significant activity—Philip Wiener’s Evolution and the Founders of Pragmatism (1949), still in print and cited by scholars through the end of the twentieth century.110 Addressing the influence of evolutionary and inductive science upon the emergence of philosophical Pragmatism in the early 1870s, Wiener examines the intellectual background and contribution of seven individuals associated with the inception of Pragmatism. These include three educated in natural science—Charles S. Peirce, William James, and Chauncey Wright—and four who were trained in law at HLS: John Fiske, Nicholas St. John Green, Oliver Wendell Holmes, Jr., and John B. Warner.111 | 70 |
| No less remarkable than the link between HLS and the majority of these “founders” of Pragmatism is the fact that the four “pragmatic lawyers”112 were colleagues or students of Langdell and approved his educational reforms. Though Holmes is traditionally understood to be a relentless critic of Langdell, he endorsed Langdell’s case method and even certain doctrinal views.113 Nicholas St. John Green was a significant ally of Langdell on the HLS faculty in the early 1870s.114 John B. Warner was one of “Kit’s freshmen” during his attendance at HLS from 1871 to 1874. Finally, Langdell’s approach to education resembled that of the fourth “Pragmatic lawyer,” John Fiske,115 who boarded at the same table as Langdell in the early 1870s. | 71 |
| No mention is made of these approving views in Wiener’s book. Instead, Langdell is depicted as antithetical to “the inductive logic” of “our Harvard lawyers.” Indeed, “Green, Warner, and Holmes found Langdell’s ‘case method’ a mechanical travesty on the historical life of the law,” according to Wiener, whose account of the “iconoclastic” Langdell is drawn from Batchelder’s 1924 essay. In fact, Wiener quotes authoritatively the revisionist view that Batchelder drew from the Centennial History and added in 1924: “It was Ames who fully developed the Socratic case method of teaching: Langdell never encouraged much discussion in class and later in life was so brimful of his subject that he confined himself to straight lecturing.”116 | 72 |
| Given Wiener’s careful research in the published and unpublished sources on other topics, his invocation of Langdell’s caricature demonstrates its unquestioned credibility by 1949. Moreover, within Batchelder’s 1924 essay, Wiener had to choose between two distinct portrayals of Langdell’s teaching: the subsumed, 1906, Socratic, inductive Langdell and the overlaid, 1924, brimful, pedantic Langdell. According to Batchelder’s 1906 presentation, Langdell would have fit well among the “pragmatic lawyers”; and Holmes’s approbation and Warner’s membership among “the first converts to” Langdell’s teaching and among “Kit’s freshmen” would have fallen into place as well.117 But these points were inconsistent with Langdell’s caricature established during the 1930s and 1940s; hence, Wiener ignored Batchelder’s own testimony about Warner and inferred from the caricature that Warner must have “found Langdell’s case method a mechanical travesty.” | 73 |
| The revisionist caricature that Wiener believed to be truly “Langdellian” thus served as a premise by which to select the evidence. The premise operated similarly in regard to Wiener’s inclusion of Holmes among those who “found Langdell’s ‘case method’ a mechanical travesty.” Wiener did not discuss or document this reference to Holmes, who has left on record his endorsement and adoption of Langdell’s case method. Wiener merely inferred that Holmes must have disdained Langdell’s case method from the uniform opposition presumed to exist between them. | 74 |
| An examination of the evidence thus reveals the appeal to the Langdellian caricature to explain events. This uncritical appeal in specialized studies by such careful scholars as Philip Wiener demonstrates its credibility in the 1940s and 1950s. Inevitably, eminent historians writing tertiary accounts relying on secondary sources, such as James W. Hurst, repeated and thereby added credibility to the distortion. Such tertiary accounts then served as authorities for subsequent general histories, as that by Lawrence Friedman, deepening the sedimentation of sources and further adding credibility to the caricature.118 | 75 |
| The Age of Caricature culminated in the writings of Grant Gilmore during the 1970s. Known for his contrarian style, Gilmore’s signal commentary on Langdell appeared in his Death of Contract (1974) and Ages of American Law (1977). These works attribute to Langdell the idea of creating a unified theory for contract law and, more generally, a unified theory for each domain of law. But, reluctant to credit Langdell in the least respect, Gilmore held that “Langdell somehow stumbled across,” or “did little more than launch,” or made “the almost inadvertent discovery of the general theory of Contract.” Furthermore, Gilmore found repugnant “the basic idea of the Langdellian revolution … that there really is such a thing as the one true rule of law, universal and unchanging, always and everywhere the same.” Hence, “Langdell was an industrious researcher of no distinction whatever either of mind or … of style.”119 In fact, “Langdell seems to have been 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…. However absurd, however mischievous, however deeply rooted in error it may have been, Langdell’s idea shaped our legal thinking for fifty years.”120 | 76 |
| In support of these assertions, Gilmore seems not to have examined a single text of Langdell. He discussed and quoted Langdell’s casebook and summary of contracts; but the heavily documented Death of Contract cited all its material about Langdell, including quotations, to Arthur Sutherland’s lightly documented, semi-official history of HLS that was published in 1967 and incorporated the revisionist view of Langdell found in the Centennial History.121 Then in Ages of American Law, Gilmore, like Jerome Frank in his later writings, cited as authorities his own Death of Contract and Sutherland’s derivative history cited earlier.122 | 77 |
| Consulting only the latest layer of sources, Gilmore fit Langdell into a Procrustean bed, just as he accused Langdell of doing to law. Gilmore’s premise about the nature of Langdell’s mind came from the revisionist caricature, which Gilmore read into Langdell’s Summary of the Law of Contracts: “the explanation, typically, is dogmatic rather than reasoned; Langdell knew right from wrong, no doubt by divine revelation, and that should suffice for the student.” Adhering to the caricature of Langdell’s teaching, Gilmore asserted that “case-method teaching … [a]t least in Langdell’s version … had nothing whatever to do with getting students to think for themselves; it was, on the contrary, a method of indoctrination through brainwashing.” In this way, the nature of Langdell’s intellect and jurisprudence was revealed in the Summary, and the Summary disclosed the usage of the casebook, “explaining which cases are ‘right’ and which are ‘wrong.'”123 In Gilmore’s logical, uniform, and formalistic account, Langdell’s mind, jurisprudence, summary, teaching, and casebook were all dogmatic, and all were consistent with each other and with the revisionist caricature. | 78 |
| The problem here—as with Jerome Frank’s assumption about Langdell’s legal practice and with Philip Wiener’s assumption about Langdell’s relations with the “pragmatic lawyers”—is that even a cursory review of the evidence belies Gilmore’s assumed uniformity among the dimensions of Langdell’s work. Those who knew Langdell in the 1870s consistently report that his early teaching was both reviled and applauded precisely because it was not dogmatic and forced students to think for themselves. Hence, Gilmore’s inference from the putatively dogmatic Summary to Langdell’s casebook and teaching is contradicted. In addition, there is Langdell’s own explanation for writing a summary, neglected by Gilmore, in which Langdell explains that the summary is “a supplement” to the casebook for those who desire it, but “there is no necessary connection between the two” and “some persons … may want the Summary who will not care for the Cases” and vice versa.124 Hence, Gilmore’s inference that Langdell’s summary and case-book have consistent purposes or audiences is again contradicted. | 79 |
| Finally, Gilmore’s inferring the nature of a professor’s mind from a didactic textbook is opposed by the commonsensical rejoinder of Holmes himself. After criticizing Langdell’s Summary in the review quoted above, Holmes concedes: “But it is to be remembered that the [Summary] is published for use at a law school, and that for that purpose dogmatic teaching is a necessity, if any thing is to be taught within the limited time of the student’s course. A professor must start with a system as an arbitrary fact, and the most which can be hoped for is to make the student see how it hangs together and thus to send him into practice with something more than a rag-bag of details.”125 | 80 |
| In sum, Gilmore’s interpretation amounts to an extended gloss on Holmes’s comment about Langdell’s view of the mailbox rule. But Gilmore’s presumption about the consistency among Langdell’s intellect, teaching, case-book, and summary is contradicted by the historical record. To understand the complex relationships among these dimensions of Langdell’s work requires careful analysis of the published and archival evidence. Gilmore was interested less in this understanding, than in identifying an exemplar for his “Age of Faith.” As he said, “A better symbol could hardly be found; if Langdell had not existed, we would have had to invent him.”126 In these words, Gilmore expresses an ideological purpose contributing to the Langdell problem. | 81 |
| Over the previous fifty years, the scholarship on Langdell had ignored most of the evidence that would normally be considered in a scholarly analysis of a historical figure. Moreover, the original sources were becoming buried so deeply under sediments of publications that the neglect was obscured and Gilmore’s view was widely taken as authoritative. For example, the next generation studying American Legal History at Langdell’s own law school learned about Langdell by reading the relevant selections in the Death of Contract and Ages of American Law.127 Meanwhile, Gilmore’s “useful” statements were quoted in virtually every analysis of Langdell published after 1980, for “Gilmore summed up the ‘dogmatic orthodoxy’ of Langdell’s method…. Langdellianism was an effective technique of indoctrination, socialization, and ideological regimentation, nothing more.”128 | 82 |
| VI. Reassessment and Return to the Sources, 1980s– | |
| Even as Gilmore’s interpretation was routinely invoked after 1980, some began to question legal scholars’ addiction to the Realist tincture of 1910s’ revisionism. On the one hand, this dissatisfaction arose from an almost instinctive reaction against “the most facile characterization” of Grant Gilmore,129 prompting efforts to develop a substantive reassessment of Langdell. On the other hand, a significant impetus for reassessment was evidentiary. The persistent reliance on the most recent secondary authorities stimulated efforts to dig through the sediments to reach the original sources. While some scholars in the 1980s and 1990s followed one or the other track of reassessment, most advances in scholarship occurred when both the substantive and evidentiary lines of inquiry were present. By the end of the twentieth century, a profusion of studies about Langdell had appeared. In the closing section of this essay, space permits discussion of only a few such studies. | 83 |
| In 1980 Marcia Speziale published an explicit attack upon Langdell’s “caricature” that she attributes to Gilmore and to “the skeptical Realists” more generally.130 Though frequently cited,131 Speziale’s interpretation has had little influence, and the extent to which her article surpassed the evidentiary and substantive standards of the previous sixty years is not appreciated. Speziale is the first scholar in the twentieth century to dig through the sedimented secondary literature published about Langdell since his death. She examines the early memorialists; the biographical researchers Batchelder, Warren, and Ames; the revisionists Redlich and the Centennial History; the counter-revisionists Fessenden and Eliot; and the caricaturists Batchelder, Frank, and Gilmore. This spadework was the necessary precursor to consulting the original sources, because a full bibliography of Langdell’s publications, let alone his unpublished writings, did not exist. Consequently, Speziale’s research in the original sources was limited to a few of the published writings each of Langdell and Holmes. | 84 |
| Based on this evidence, Speziale argues, first, that Langdell’s writing and teaching exhibit “empiricism and organicism,” rather than the deductive formalism long attributed to him. In fact, the historical Langdell “really might have been the first ‘anti-Langdellian.'” Second, Speziale attributes Langdell’s “empiricism and organicism,” to the Darwinian conception of natural science because Langdell’s views “parallel nineteenth-century empiricist and evolutionist thinking.”132 | 85 |
| The neglect of Speziale’s thesis may be attributed to its publication in a new and less prestigious journal, as well as to the emergence during the subsequent decade of Critical Legal Studies, neo-Pragmatism, and “the interpretive turn” in legal theory,133 all of which found the Langdellian caricature a useful foil, just as the Realists had. In other words, there persisted a strong ideological motivation to keep Langdell in Gilmore’s Procustean bed. Apart from those reasons for neglect, Speziale’s thesis exceeds the limits of her sources, because she provides no evidence to show that the posited parallelism resulted from the influence of scientific discussion upon Langdell. The speculative character of her argument is demonstrated by the subsequent publication of more extensive, analogous arguments attributing Langdell’s jurisprudential “science” to deductive geometry or to antebellum “Protestant Baconianism.”134 In each case, the scholar identifies an intellectual tradition within mathematical or natural science, makes a congruent interpretation of Langdell’s thought, and infers causal influence. But the inference, being unconfirmed by evidence, is conjectural, as demonstrated by the assertion of these three different, even irreconcilable interpretations. | 86 |
| Contemporaneous with Speziale’s work, there appeared another pioneering reassessment of Langdell, conveyed in two articles by Anthony Chase. Though examining only a fraction of the secondary literature known to Speziale, Chase makes an evidentiary contribution in warning about Gilmore’s “extremely limited sampling” of primary sources and calling attention to the neglect of Langdell’s decanal reports. Chase also contributes to the substantive reassessment by challenging the portrayals of Langdell by Jerome Frank, Grant Gilmore and, derivatively, Joel Seligman.135 | 87 |
| In the first, 1979 article, Chase undertakes to show that case method teaching originated not with Langdell, but with Charles W. Eliot who borrowed it from clinical instruction at the medical school and applied it to the law school. This borrowing reveals, more fundamentally, that case method arose out of a broad cultural movement toward professionalism and clinical education, says Chase. While these conclusions have been widely applauded136 and Chase exhibited brilliant intuition in seeking to contextualize Langdell’s reforms within professional culture, the steps in his argument cannot bear scrutiny. | 88 |
| The first step is to maintain that case method at HLS should be understood through the views of President Eliot, rather than Langdell or the HLS faculty. But no evidence is presented showing that Eliot’s views influenced Langdell or other professors at HLS.137 The next step is to show that Eliot championed clinical education at the medical school and invoked it when explaining case method at the law school. Yet, Chase cites only one unconvincing example of Eliot linking clinical, medical education to legal education.138 Chase concludes the 1979 article by citing Michel Foucault’s Birth of the Clinic (1973) to authorize the attribution of Eliot’s action to a larger cultural movement toward professionalism and clinical education.139 Here again, no evidence for the causal relationship is presented, and the reader begins to suspect that the entire article owes more to reading Foucault than the original sources concerning HLS case method. | 89 |
| In a longer 1981 article, Chase, like Frank and Gilmore, deposits another layer in the literature by taking it for granted that his prior essay demonstrated that “the early victories won by clinical instruction at the Harvard Medical School made it the model for all subsequent legal instruction in the United States.” He then repeats and elaborates the Foucaultian argument and attributes the legal modeling upon clinical medical education to Langdell’s and Eliot’s understanding of “the necessary relationship between modern professionalism and the educational process through which new members of the professions would be recruited and trained.”140 | 90 |
| These conclusions are all conjectural, and their widespread invocation and approbation demonstrate some important points about the Langdell problem in the era of reassessment. First, the tendency persists to endorse interpretations and to cite secondary sources without carefully examining the underlying evidence. Second, substantive reassessment of Langdell appears to face a dilemma. On the one hand, many scholars are dissatisfied with Langdell’s caricature even as the phrases of Jerome Frank and Grant Gilmore are repeatedly quoted. On the other hand, the mountain of sedimented literature repeating the derogatory image stands in the way of reassessing Langdell. Hence, it is too facile to caricaturize Langdell and too outlandish to rehabilitate him. | 91 |
| A common strategy to negotiate this dilemma, exemplified by Chase, is to attribute to Langdell beneficial ideas or policies, but to credit their source or effect to another individual, as Chase does to Eliot, or to broad cultural forces, as Chase invokes Foucault. In short, the claim is that Langdell made inadvertent contributions to legal education or law. Because Chase’s arguments are simply not sound, their appeal may lie in this attractive strategy of inadvertence, reminiscent of Gilmore’s attribution to Langdell of “the almost inadvertent discovery of the general theory of Contract.”141 | 92 |
| In 1983 Thomas Grey published one of the most influential and “celebrated” reassessments of Langdell.142 Extending the evidentiary reassessment, Grey examined more of Langdell’s publications more deeply than had any commentator since the 1920s. In absolute terms, however, Grey neglects the half of Langdell’s writings consisting of unpublished lecture notes, papers, letters, and briefs of cases. Of the published half, which Grey calls “the Langdellian corpus,”143 he cites all three of Langdell’s doctrinal summaries, one of his casebooks, and four of his independent articles in the Harvard Law Review, as well as one of Langdell’s essays about Harvard Law School. This cited material constitutes about half of Langdell’s publications. Within this cited quarter of Langdell’s writings, Grey’s focus is quite limited, because he marginalizes the subjects of pleading, procedure, and equity jurisdiction to which Langdell devoted about two-thirds of his lawyering, teaching, and publishing, as well as the subjects in commercial law, to which Langdell devoted about two-ninths of his work. In the end, Grey focuses on about one-ninth of Langdell’s total writings: Summary of the Law of Contracts. | 93 |
| Grey’s evidentiary focus suits his substantive analysis, presenting the most sophisticated understanding of Langdell as the exemplar of “classical legal thought” or “classical orthodoxy,” which “haunts us still.”144 Commensurately, Grey maintains that Langdell excludes, marginalizes, or declares exceptional or anomalous areas or points that do not fit within “the geometric structure of law’s universally formal conceptual order.” This excluded territory comprises certain judicial decisions; certain unformalized areas of law, such as commercial law, public law, and procedure;145 and, above all, the domains of policy and justice. The latter two, cardinal domains are subsumed by Grey under the category of “acceptability.”146 Langdell’s exclusion of acceptability is exemplified for Grey by Langdell’s comment that “substantial justice and the interests of the parties” were “irrelevant” to analysis of the mailbox rule in contract law. This view “has ever since been taken to express the wretched essence of his kind of legal thinking.”147 Commensurately, Grey cites Holmes’s critique of Langdell on this point and repeatedly contrasts him with Langdell. As Langdell stood to Holmes, “so stood classical orthodoxy to modern legal thought generally: the indispensable foil, the parental dogma that shapes the heretical growth of a rebellious offspring.”148 | 94 |
| While Grey’s argument thus far is largely consistent with Gilmore’s view, Grey contributes to the substantive reassessment by proposing that Langdell’s “conceptually ordered and universally formal legal system readily suggests a structural analogy with Euclidean geometry.”149 Grey then attributes Langdell’s analogies between natural and legal science and the concomitant “claim of classical legal science to be experimental and inductive”150 to the “standard view of geometry in the late nineteenth century” as found in “the bible of Victorian philosophy of science, J. S. Mill’s System of Logic.”151 | 95 |
| Another new dimension in the substantive reassessment of Langdell appears in Grey’s demonstration that “[t]hroughout his work, Langdell appealed to considerations of justice or policy.” Yet, these expressions of acceptability in Langdell’s jurisprudence do not compromise his classical orthodoxy, says Grey. On the one hand, “these arguments of justice and policy do not bulk large in the Langdellian corpus. Langdell’s most common form of doctrinal discourse was simple dogmatic pronouncement” or appeal “to authority or to ‘principle’ (that is, doctrinal coherence).” On the other hand, Langdell never permitted policy or justice to influence decisions or rules in specific cases. For Langdell, “[c]onsiderations of justice and convenience were relevant, but only insofar as they were embodied in principles—abstract yet precise norms that were consistent with the other fundamental principles of the system.”152 | 96 |
| In this way, Grey’s reassessment provides a more complex and deeply evidenced view of Langdell that is essentially consistent with the received interpretation of the prior half century. Yet, an examination of the evidence consulted by Grey reveals that a good deal more remains to be said about Langdell’s jurisprudence than is conveyed by “classical orthodoxy.” In fact, there is throughout the essay an ironic tendency to treat Langdell’s jurisprudence just as Grey portrays Langdell treating law: to exclude, to marginalize, and to declare peripheral and anomalous certain aspects in order to fit the subject into a formalized category. This Procrustean approach might stem from Grey’s own highly formalized framework of meta-analysis whereby he “abstracted the ideas of classical orthodoxy into an intellectual system.”153 Whatever the source, Grey’s discounting or excluding aspects of Langdell’s work that do not fit the category of “classical legal thought” is unmistakable. | 97 |
| One fundamental exclusion pertains to sources. Grey treats Langdell’s three summaries of doctrine as the key sources of his “jurisprudence” and sets aside Langdell’s four casebooks as “pedagogic,”154 even while acknowledging that “case method was … in contradiction with classical orthodox theory” and that “Langdell’s own educational innovations did help to undermine his approach to legal doctrine.”155 Not only does this contradiction seem to justify, even require, treating Langdell’s case method as part of his legal theory, but Grey barely attempts to justify distinguishing “pedagogic” from “jurisprudential” works.156 | 98 |
| Although a number of scholars have followed Grey in adopting this distinction,157 the lack of justification is noteworthy in view of the fact that Jerome Frank and Grant Gilmore did not distinguish between Langdell’s jurisprudence and pedagogy. Moreover, Grey immediately contradicts his own distinction by treating Langdell’s summaries as the main sources of his jurisprudence. Yet, Langdell explicitly described his summaries as pedagogical works transmitting legal doctrine for teachers and students who wanted to employ them, either with his casebooks or not. James Barr Ames noted the same point; and Holmes qualified his famous criticism about Langdell’s comment on the mailbox rule by observing that Summary of the Law on Contracts “is published for use at a law school, and that for that purpose dogmatic teaching is a necessity.”158 Consequently, Grey treats these teachers’ aids or student guides as “jurisprudential” after himself dismissing pedagogical works as “independent” of jurisprudence.159 Moreover, Grey treats the pedagogical primer Summary of the Law of Contracts as “Langdell’s most Langdellian book.”160 Grey does not provide any evidence that Langdell designated this summary as his chief or crowning work. What Grey apparently means by “most Langdellian” is that the Summary of the Law of Contracts fits most closely “classical legal thought,” the category that Grey assigns to Langdell, relying on evidence drawn primarily from the Summary. | 99 |
| Grey’s contradiction of his own definition of “jurisprudence” is repeated later in the essay when he draws from a casebook in discussing Langdell’s analogies between law and natural science. Grey’s inclusion of this initially excluded “pedagogic” source occurs without justification or acknowledgment161 and demonstrates how the operant criterion for distinguishing sources is apparently whether or not they illustrate Langdell’s “classical orthodoxy.” The contradiction is repeated once more at the end of the essay where Grey explicitly rejects the distinction between pedagogy and jurisprudence by observing how classical orthodoxy survives in the organization of the law school curriculum “where it can shape our thinking through its unspoken judgments.”162 | 100 |
| Consequently, the exclusion of some of Langdell’s publications and the designation of a “most Langdellian” treatise are made by the criterion of whether a given work fits within “classical legal thought.” The entire analysis becomes circular because the selection of evidence seems to be determined by the expected conclusion.163 | 101 |
| Apart from excluding sources, a second kind of marginalization of evidence occurs within the sources that Grey does consider. Grey is the first commentator to observe, correctly, that “throughout his work, Langdell appealed to considerations of justice and policy.” But he immediately vitiates that observation by asserting that “these arguments of justice and policy do not bulk large in the Langdellian corpus.”164 However, the majority of Langdell’s lawyering, teaching, and writing addressed precisely those fields—procedure and equity—that “Langdell was much more apt to explain and justify … on instrumental grounds than doctrines of substantive law.”165 And the next largest domain of Langdell’s work was commercial law, in which decisions and rules are rationalized instrumentally, as Langdell acknowledged. Grey cites these acknowledgments as evidence of Langdell’s “classical orthodoxy,” because Langdell deems the rationales “anomalous” in order to preserve the systematic, logical coherence of contract law, according to Grey.166 However, Langdell’s unpublished lectures on commercial law indicate far greater deference to instrumental rationales than the example that Grey draws from the Summary of the Law on Contracts.167 | 102 |
| That “arguments of justice and policy” do, in fact, “bulk large in the Langdellian corpus”—because Langdell worked predominantly in fields that he was “much more apt to explain and justify … on instrumental grounds than doctrines of substantive law”—is confirmed by the pattern of data that Grey himself presents on behalf of “Langdell’s orthodoxy.” Grey’s essay actually provides more examples of Langdell appealing “to considerations of justice and policy” than of dismissing them. Even in the Summary of the Law on Contracts, Grey provides more examples of Langdell adverting to justice or policy than of excluding them. | 103 |
| For data supporting the central proposition that Langdell rejected the application of policy or justice to bottom-level rules or specific cases, Grey discusses or invokes Langdell’s comment on the mailbox rule six times.168 Beyond that, Grey discusses one other instance in which Langdell “rejected concerns of acceptability in sponsoring another famously unattractive doctrinal position,”169 and Grey later adverts to three other instances.170 In contrast, Grey cites eleven instances of Langdell appealing “to considerations of justice or policy”: seven from Summary of the Law of Contracts and four from other sources.171 | 104 |
| Consequently, Grey’s evidence for the central tenet of Langdell’s “classical orthodoxy”—the irrelevance of justice and policy to jurisprudence—is quite limited, and persuades readers only because Grey marginalizes the evidence that does not fit his thesis. This data pattern indicates that Grey takes for granted that Langdell is a “classical legal thinker” and conceives his purpose to be not to demonstrate, but to explicate Langdell’s “classical orthodoxy,” whose “wretched essence” is found in Langdell’s comment on the mailbox rule. | 105 |
| To place such weight upon one comment would be remarkable, even apart from the fact that the comment was called “only incidental” by Holmes, “an intentional jurisprudential flourish” by Grey himself, and “only an aside” by other scholars.172 Moreover, some have maintained that the interpretation that Langdell’s discussion of the mailbox rule, when interpreted in its context, does not demonstrate Langdell’s dismissal of practical consequences in considering legal doctrine.173 Hence, to make this assertion the fulcrum of Langdell’s entire jurisprudence is scarcely justified, just as to call this assertion “one of the great legal howlers of all time”174 is disingenuous. | 106 |
| Overall, Grey’s thirty-two pages reassessing Langdell provide the scholarly apparatus and complexity that are missing in Gilmore’s simplistic glosses on Holmes’s comment about Langdell’s view of the mailbox rule. This is demonstrated, above all, by Grey’s a priori declaration of Summary of the Law of Contracts as “most Langdellian.” In so doing, Grey does not mention, let alone address, the countervailing points that this text is pedagogical, is not organized conceptually and axiomatically but by “the pre-classical principle of alphabetical order,” and “is decidedly not a canonical treatment of contract law.” Nor does Grey acknowledge, while treating the Summary as exemplary, that Langdell “never wrote that most emblematic of classical books: the massive treatise synthesizing and explicating a body of law as an expression of classical jurisprudential concepts.”175 Nevertheless, the outcome of Grey’s influential essay has been to assuage any doubts about the validity of interpreting Langdell’s jurisprudence as the archetype of deductive formalism. | 107 |
| Grey’s claim that Langdell was a “classical legal thinker,” who dwelled upon the idea of “legal science” and divorced acceptability from rules and decisions in specific cases, must be tested against Langdell’s unexamined or neglected sources. These range from early publications—affirming, for example, in 1868 that a husband must defray his wife’s legal costs during litigation over alimony, because “otherwise she would be denied justice”176—to later articles, asserting in 1897 that bills of discovery will lie in equity “[b]ecause the interests of justice require that they should, and therefore equity raises a right upon which they can rest.”177 In addition, there are records of Langdell’s litigation in which he argues before the New York Supreme Court that to dismiss, without offering an opportunity to amend, his client’s answer to a complaint due to a procedural defect “is inconsistent with every idea of natural justice.”178 There are also lectures, affirming in 1892 that it “is partly a question of intention and partly a question of law,” as to when a person’s promise becomes the collateral obligation arising in a suretyship.179 Such comments indicate that “classical orthodoxy” does not fully comprehend the complexity of Langdell’s jurisprudence, which needs to be reassessed in light of a broader and deeper review of Langdell’s writings, both published and archival. | 108 |
| The biggest step toward that reassessment was taken in 1994 when William P. LaPiana published his groundbreaking Logic and Experience. Although reviewers have called it “the most thoughtful biographical treatment to date of … Langdell,”180 the book is not a biography but a study of legal education from the early nineteenth century through the early twentieth. Langdell is the dominant figure, but the book is not organized around his life or work, and the material devoted to him does not exceed seventy-five pages.181 The analysis here is limited to its relation to the prior historiography and to the sources. | 109 |
| LaPiana consulted a broader range of secondary sources than any previous scholar. But he does not develop an analysis of the variegated historiography to explain how or why positive and negative assessments of Langdell arose. Nor does he evaluate the validity of the historiography in light of the available evidence. Rather, he seems to assume that one set of (generally early) sources was too celebratory and another set of (generally later) sources was hypercritical and that all are about equally valid. As a result, he still seems wary of speaking positively about Langdell and rarely expresses stronger approbation than “Langdell was no fool,” though rising occasionally to note “Langdell’s unique contribution to the intellectual history of American law.”182 If indeed wary, LaPiana’s instinct was correct because some reviewers construed his affirming presentation of even a flawed Langdell as “merely an attempt to recover a time past that in the hagiography of law teaching was seen as a golden age” or as defending “a client and a cause … LaPiana’s client is … Langdell.”183 | 110 |
| Such responses were, however, rooted in the age of caricature. LaPiana’s reassessment has the tone not of advocacy, but of careful deliberation and stands as the first scholarly study of Langdell and his legal and educational context. LaPiana’s book is the first attempt to gather and sift the historical evidence and to undertake a detached analysis of Langdell within his historical context. After ninety years, however, the original sources are so deeply buried under sediments of countervailing historiography that even a detached analysis is immediately construed as advocacy. | 111 |
| Confirmation of LaPiana’s detachment appears in the originality of his thesis, entwining the influences of antebellum positivism, jurisprudential formalism, and practical lawyering: “Langdell studied and taught law not as a system of principles whose validity could ultimately be traced to the Creator, but as a logically coherent system of technical rules, principles that are applicable only to the decision of cases in the courts and which come from those cases. The case method of teaching law was also the case method of studying law.”184 In support of this thesis, LaPiana’s consultation of Langdell’s published works is broader and deeper in some respects than that of Grey, who cited about one-quarter of Langdell’s total writings and attended most carefully to the small fraction most consistent with his preconception of Langdell’s jurisprudence. LaPiana draws helpfully from Langdell’s annual reports as dean, which Grey did not, and otherwise nearly replicates the breadth of Grey’s investigation, citing one of Langdell’s four casebooks, five of his nine independent articles in the Harvard Law Review, one of Langdell’s three published writings about Harvard Law School, and two of his three summaries of law. LaPiana’s deeper study of these publications appears particularly in his analysis of Langdell’s Summary of Equity Jurisdiction and argument for its symmetry with Langdell’s Summary of the Law of Contracts along the lines of his thesis, stated above.185 | 112 |
| But this approach also demonstrates the limitations of LaPiana’s review of the published writings because the most natural and compelling way to make his argument—and to assess Langdell’s jurisprudence overall—would be to begin with Langdell’s Summary of Equity Pleading (1876, 1877). This was Langdell’s first summary, the longest (after its second edition of 1883), and the only one that covers its subject. This summary also addresses the topic that he taught for the longest time, spanning nearly his entire, professorial career. For all these reasons, the Summary of Equity Pleading needs to be addressed, but LaPiana overlooks it.186 Likewise, the omission of Langdell’s Cases on Sales (1872) and Cases in Equity Pleading (1875, 1876) are regrettable, given LaPiana’s sophisticated appreciation of the complex interrelations of jurisprudence, teaching, and legal practice. | 113 |
| The significance of these omissions increases when one realizes that, apart from a few annual reports, LaPiana draws from only two of Langdell’s publications prior to 1885: the casebook on contracts (1871) and the summary on contracts (1879, 1880). Yet, it was in the period between 1870 and 1885 that virtually every development that would eventually characterize “modern American legal education” was established or was in the process of being established at HLS. In other words, Langdell’s efforts at educational reform occurred largely before 1885. After that point, recently married for the first time and rapidly losing his eyesight, he devoted much of his effort to writing lectures and articles on a divergent set of topics, including the increasingly outmoded issue of equity jurisdiction. Many students, such as Beale and Williston, began to see him as past his prime, though their perception does not mean that his legal analysis had lost its acuity, as LaPiana reveals. What the chronological pattern does mean is that there is a distinct asymmetry between the bulk of Langdell’s publications consulted by LaPiana (mostly after 1885) and the period of Langdell’s revolutionary work in legal education (mostly before 1885). | 114 |
| In the unpublished sources, LaPiana casts his net farther than had anyone since 1910.187 He makes instructive, original use of the Harvard University archives, particularly the letters of President Eliot and the official reports of officers and overseers. However, he draws little from the separate, HLS archives, consulting the set of letters gathered in 1907 and 1908 by Charles Warren about HLS in the mid-nineteenth century188 but not the annotated casebooks and lecture notes of Langdell and his students. In Langdell’s papers, LaPiana cites one or two items out of the 5,000 but none of the largest collection of Langdell’s letters, all of which address his handling of his first, reported litigation as a practicing attorney. This collection would have directly informed LaPiana’s original thesis about Langdell’s “methodology of the science of law.”189 | 115 |
| Regarding Langdell’s work as an attorney, LaPiana identifies one additional case in which Langdell participated during his time at the New York City bar from 1855 to 1870.190 But he was apparently unaware of other such cases and adopts the traditional, dismissive view of the extent and effectiveness of Langdell’s practice, saying that Langdell began with “a slow start,” worked in “relative isolation,” and “‘did not appear in court, and … was not generally known even by lawyers….'”191 Nevertheless, LaPiana concludes, “Although the evidence is slight, … Langdell’s practice should have made him as familiar with the practicalities of the procedural system as his formal education had familiarized him with the science of principles.”192 Approving reviewers have said that LaPiana makes this point “persuasively”;193 but he soon acknowledges that this gambit is a virtual non sequitur, based only upon “the possibility of inferring from similarities” between Field Code pleading in New York and Langdell’s jurisprudence “a certain degree of influence.”194 | 116 |
| In sum, Logic and Experience addresses a broader topic than the life and work of Langdell, whose treatment in the book falls within the scope of a law-review article. Logic and Experience surpasses Grey’s limited examination of Langdell’s publications and breaks new ground in consulting archival sources at Harvard and in many other locations. However, half of Langdell’s publications and the half of the Langdellian corpus consisting of letters, annotated teaching materials, handwritten lectures, manuscripts, and case reports are scarcely examined. Nevertheless, by reason of its detachment and balanced review of the evidence, LaPiana’s landmark book provides the first scholarly interpretation of Langdell’s work and the cornerstone of all future research. | 117 |
| In 1997 the influence of LaPiana’s higher standard for reassessing Langdell was manifested in the longest article ever published about Langdell. Although more than a third of the article is devoted to the reception and later development of case method and to a presentist excursus addressing Langdell’s views of race, class, and gender, the balance of Burlette Carter’s essay contributes to the reassessment movement in certain respects.195 | 118 |
| In general, substantive terms, Carter responds to the caricature of Langdell as “a dull simpleton” and challenges the inadvertence gambit, noted above, whereby Langdell’s “contributions have been narrowly described, with credit for any perceived successes shifted to the laps of others.”196 Reminiscent of Speziale’s argument, Carter objects to “stereotyping Langdell as a formalist” and advances an “interpretation of Langdell’s vision of law as broad categories of evolving doctrine shaped by legal actors.”197 In addition, following the lead of Anthony Chase and William LaPiana, Carter maintains, “For Langdell … the science of law was intricately tied up with its practice,” and his pedagogy involved “integrating the practical and the theoretical.” In this regard, Carter calls attention to “one of the most overlooked influences on Langdell’s thinking—and likely one of the most powerful … his [fifteen] years of experience in law practice.”198 | 119 |
| In line with the evidentiary reassessment of Langdell, Carter conducted a Lexis search identifying over 700 law review articles invoking Langdell’s name, more than half of these written since 1990, and consulted nearly all of the secondary literature discussed above.199 Carter also examined primary sources, such as the minutes of the HLS faculty over that same period, the correspondence of Harvard president Charles W. Eliot, and the letters written by Langdell regarding his first, reported litigation as a practicing attorney.200 | 120 |
| Despite this effort, the contribution of Carter’s essay is quite limited. Much of the research seems hurried. She consults only a handful of Langdell’s fifty-three letters about his first major litigation and does not examine the report of that case or of the other two cases on which Langdell was known to have worked.201 Nor does she search for any new cases. These are significant oversights in an essay arguing that Langdell’s practice is one of the “most overlooked” and “most powerful” influences on his thinking. Haste may also explain why Carter consults fewer of Langdell’s publications than either Grey or Lapiana.202 | 121 |
| Another shortcoming is that Carter’s essay is not anchored in a historiographical analysis. Though critical of the historiography, she does not distinguish among lines of interpretation, identify the reasons for them, or assess their validity in light of the evidence. Without an analysis of when, how, or why the historiography shifts, Carter cannot formulate reasons to challenge it beyond appealing to a kind of intuitive empathy for Langdell. Consequently, Carter’s basic thesis amounts to splitting the difference between positive and negative assessments of Langdell: “My conclusion is that we have criticized Langdell both too much and too little.” On the one hand, Carter opposes the predominant caricature and adopts a sympathetic view of Langdell; on the other hand, she warns against “overly appreciative” accounts and repeats depreciations of Langdell’s work.203 This thesis emerges not from a careful, comprehensive review of the evidence, but out of an unstated conviction that the truth about Langdell must lie somewhere in the middle of the varying judgments expressed about him. | 122 |
| By the same token, Carter’s attempt to rebut “stereotyping Langdell as a formalist” founders on the same reefs as Speziale’s. While offering an alternative view of Langdell’s jurisprudence and pedagogy, she does not adequately address the contrary interpretation or evidence about Langdell’s views. The question arising from the Age of Caricature was how Langdell could have been so influential if the caricature is valid; the converse question left by Speziale’s and Carter’s analysis is how Langdell could have been misinterpreted, if the caricature is so wrong. The failure to answer or even address these questions makes both interpretations unsatisfying. At the end of the twentieth century, this longest essay attempting to “reconstruct” Langdell falls far short of an adequate account, empirically or analytically. | 123 |
| VII. Conclusion | |
| Nearly a century has passed since the death of Christopher Langdell, and hundreds, if not thousands, of publications have discussed him and his work, in no small part because Langdell is identified with the modern paradigm of legal education. Yet, Langdell remains an intractable problem for legal scholars and historians. This historiographical problem comprises two paradoxical issues: on the one hand, how and why the received disparaging view has developed and persisted despite the enormous influence of Langdell and his model of legal education; on the other hand, how and why the century of scholarship on Langdell has overlooked the majority of original sources that would normally be considered in a scholarly analysis of a historical figure. | 124 |
| By historicizing the historiography, this essay has demonstrated that commentary on Langdell throughout the twentieth century has relied primarily on published studies, without considering whether they are validated by evidence from the original sources. As a result, there has accumulated an imposing and deeply sedimented mound of scholarship obscuring the neglect of original sources. This sedimentation has resulted because the received view of Langdell has served the purposes of legal scholars in a variety of ways at different points during the past century.204 | 125 |
| One such purpose was to honor a revered mentor. Although Batchelder and Ames made more effort to consult original sources than would be seen again for decades, their narratives tended, paradoxically, either to emphasize or to understate Langdell’s limitations in order, presumably, to elevate his accomplishments. Conversely, in the early revisionist period, personal allegiances either to esteemed mentors—appearing to be unjustly overshadowed by Langdell—or to other law schools—competing with HLS—seem to explain novel interpretations of Langdell that became codified in the literature. An example here is the proposition that Langdell was originally a dogmatic pedant and that Ames or Keener introduced into case method the Socratic questioning and the purpose of training students to think legally. | 126 |
| Another reason for the reluctance to challenge the received view appears to be commitment to an ideology that is bolstered by a particular interpretation of Langdell. This is shown by the writings of certain Realists, such as Jerome Frank, for whom Langdell served as the perfect foil for a psychological functionalist view of jurisprudence. In this regard, it should also be recalled that it was Batchelder’s laudatory interpretation that was coopted by Frank. Hence, it is not merely the layering of sediments that obscures the original sources, but also their complex interrelation that obscures by employing the same unfounded interpretation in different ways and thereby adding to its credibility. This complex interrelation is demonstrated as well by Philip Wiener’s reliance on Batchelder’s interpretation. | 127 |
| Ideological commitment may also explain, in part, the reliance on a tertiary account of Langdell in the otherwise heavily documented Death of Contract by Grant Gilmore. But it appears, too, that some degree of personal contrarianism—or, perhaps, the adversarial character of the legal profession—explains part of Gilmore’s tendency to prefer a countervailing interpretation to consulting the evidence. | 128 |
| Whether or not the adversarial character is explanatory in this way, other characteristics or purposes of the legal profession may help to explain the neglect of evidence about Langdell, even in the latest period of reassessment and return to the sources. The astonishing perseverance of Langdell’s educational model may make it hard for legal scholars to achieve the necessary detachment in studying Langdell. Because Langdell’s work still matters in general and has mattered personally to every scholar who has endured law school, detachment is difficult, and the foregoing reasons of personal allegiance, ideological commitment, and adversarial nature become more influential in discussing Langdell than they would, say, in discussing Timothy Dwight, Langdell’s outmoded contemporary at Columbia University. | 129 |
| A final reason and professional characteristic may be that lawyers are trained to make arguments, and law professors all the more. The esteem for arguments detracts from the investigation of evidence since, if one has a good legal mind, facts can be fitted into opposing arguments or marginalized. This helps to explain why making an argument about Langdell has been preferred over examining the evidence. Strengthening this professional characteristic is the research methodology of legal scholarship. The highly developed legal citation system, now computerized, has induced legal scholars to document their writings without recourse to archival sources. | 130 |
| These reasons—personal allegiance, ideological commitment, depth and interaction of sedimentary levels, adversarial character of law, lack of detachment from Langdell, lawyers’ esteem for argument, and legal research methodology—contribute to explaining the Langdell problem. | 131 |
| A full accounting and probing of such reasons would entail a philosophy of history that cannot be undertaken here. What can be said with confidence is that a more faithful and complex picture of Langdell—the student, lawyer, professor, and dean—will emerge, as scholars overcome the ironic reluctance for the past ninety years to examine the available evidence. The irony resides in the fact that the law professor who taught his profession to scrutinize every general proposition in light of the original sources about specific cases has had his story told and his legacy shaped by many who flouted his most fundamental principle. Surely there is no greater justification for the study of Langdell to continue. | 132 |
Appendix 1: A Chronological Bibliography of C. C. Langdell’s Publications1868 “Alimony,” “Condonation,” “Divorce,” “Nullity of Marriage,” “Promise of Marriage,” and “Separation a Mensa et Thoro” in John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America, 12th ed., 2 vols. (Philadelphia: George W. Childs, 1868). 1870 A Selection of Cases on the Law of Contracts with References and Citations … Prepared for Use as a Text-Book in Harvard Law School (Boston: Little, Brown, 1870), 460p. This often cited imprint was the first half of Langdell’s initial case-book. Annual Report of the Dean of the Law School, 1869–70, pp. 51–52.205 1871 A Selection of Cases on the Law of Contracts with References and Citations … Prepared for Use as a Text-Book in Harvard Law School (Boston: Little, Brown, 1871), 1022p. This volume subsumes the 1870 edition and contains Langdell’s widely quoted preface explaining and justifying his case method. It also includes a thirteen-page topical and doctrinal index that was later expanded into a “Summary,” published at the end of the second edition of Cases on Contracts (1879) and separately in 1880. Annual Report of the Dean of the Law School, 1870–71, pp. 59–65. 1872 Langdell, A Selection of Cases on Sales of Personal Property with References and Citations … Prepared for Use as a Text-Book in Harvard Law School (Boston: Little, Brown, 1872), v. 1, 1039p. This volume includes a nineteen-page topical and doctrinal index. Despite his intention announced in the prefatory note, Langdell never published a second volume or second edition. Annual Report of the Dean of the Law School, 1871–72, pp. 60–64. 1873 Annual Report of the Dean of the Law School, 1872–73, pp. 60–64. 1874 Annual Report of the Dean of the Law School, 1873–74, pp. 63–67. 1875 Langdell, Cases in Equity Pleading, Selected with Special Reference to the Subject of Discovery … Prepared for Use as a Text-Book in Harvard Law School [Part I] (Cambridge: Printed for the Author, [1875]). This volume ends in the middle of a case on p. 400. Annual Report of the Dean of the Law School, 1874–75, pp. 73–77. 1876 Langdell, Cases in Equity Pleading … Part II (Cambridge: Printed for the Author, [by the Press of John Wilson], 1876), 708p. This volume takes up from Part I in the middle of a case on p. 401 and continues through p. 708. Appended is Summary of Equity Pleading with its own “Contents” page, “Table of Cases,” and pagination through p. 120, followed by an extensive topical index. Annual Report of the Dean of the Law School, 1875–76, pp. 70–73. 1877 Langdell, A Summary of Equity Pleading (Cambridge: Charles W. Sever, 1877), 130p. Annual Report of the Dean of the Law School, 1876–77, pp. 82–97. 1878 Langdell, Cases in Equity Pleading, with Special Reference to the Subject of Discovery … Prepared for Use as a Text-Book in Harvard Law School [no reference to 2nd ed.] (Cambridge: Printed for the Author, 1878), 708p. This volume combines Part I (1875) and Part II (1876), without including the Summary (1877). Annual Report of the Dean of the Law School, 1877–78, pp. 84–88. 1879 Langdell, Cases on Equity Jurisdiction ([Cambridge]: [1879–1880?]), parts 1–3? In 1879 Langdell began issuing preprinted installments of this casebook, which he anticipated compiling into a completed edition, as he had in the past. The facts that the parts were issued sporadically over the next four years and that the case-book was never completed indicate that by 1880 his expectations were beginning to exceed his capacity to complete his writing. Langdell, A Selection of Cases on the Law of Contracts with a Summary of the Topics Covered by the Cases … Prepared for Use as a Text-Book in Harvard Law School, 2nd ed. (Boston: Little, Brown, 1879), 1 vol. in 2 parts, 1116p., with a summary appended. Annual Report of the Dean of the Law School, 1878–79, pp. 80–86. 1880 Langdell, A Summary of the Law of Contracts (Boston: Little, Brown, 1880). Langdell states that this is a separate publication of the appendix to the 1879 case-book, with some changes in form and virtually none in content (p. v). Annual Report of the Dean of the Law School, 1879–80, pp. 83–88. 1881 Annual Report of the Dean of the Law School, 1880–81, pp. 68–86. 1882 Annual Report of the Dean of the Law School, 1881–82, pp. 84–89. 1883 Langdell, A Summary of Equity Pleading, 2nd ed. (Cambridge: Charles W. Sever, 1883), 282p. Langdell, Cases on Equity Jurisdiction ([Cambridge: [1879–1883?]), 369p. This version includes the balance of Part 5, pp. 242–369. Langdell never completed the work and finally abandoned it in about 1891. Annual Report of the Dean of the Law School, 1882–83, pp. 90–95. 1884 Annual Report of the Dean of the Law School, 1863–64, pp. 100–107. 1885 Annual Report of the Dean of the Law School, 1884–85, pp. 112–16. 1886 Langdell, “Address,” in Harvard Law School Association, Report of the Organization and of the First General Meeting, 1886 (Boston: Harvard Law School Association, 1887), pp. 49–50. Reprinted in Law Quarterly Review 9 (1887 London): 123–25; American Law Review 21 (1887): 123–25. Langdell, “A Brief Survey of Equity Jurisdiction,” Harvard Law Review 1 (1888): 55–72, 111–31, 355–87; Harvard Law Review 2 (1889): 241–67; Harvard Law Review 3 (1890): 237–62; Harvard Law Review 4 (1891): 99–127; Harvard Law Review 5 (1892): 101–38. Annual Report of the Dean of the Law School, 1885–86, pp. 84–91. 1887 Annual Report of the Dean of the Law School, 1886–87, pp. 86–93. 1888 Annual Report of the Dean of the Law School, 1887–88, pp. 92–105. 1889 Annual Report of the Dean of the Law School, 1888–89, pp. 111–23. 1890 Annual Report of the Dean of the Law School, 1889–90, pp. 126–36. 1891 Annual Report of the Dean of the Law School, 1890–91, pp. 104–17. 1892 Annual Report of the Dean of the Law School, 1891–92, pp. 113–23. 1893 Annual Report of the Dean of the Law School, 1892–93, pp. 133–44. 1894 “The Harvard Law School, 1869–1894,” Harvard Graduates’ Magazine 2 (1894): 490–98. Annual Report of the Dean of the Law School, 1893–94, pp. 121–34. 1895 “[Address of Dean C. C. Langdell],” Report of the Ninth Annual Meeting [of the Harvard Law School Association] … in Especial Honor of Christopher Columbus Langdell (Boston: Harvard Law School Association, 1895), pp. 41–48. 1897 “A Brief Survey of Equity Jurisdiction,” Harvard Law Review 10 (1897): 71–97. This article and those from the 1880s were later collected together and reprinted as A Brief Survey of Equity Jurisdiction, being a series of articles reprinted from the Harvard Law Review (Cambridge: Harvard Law Review Association, 1905), 303p. Langdell, “Discovery under the Judicature Acts of 1873, 1875,” Harvard Law Review 11 (1897): 137–57, 205–19; 12 (1898): 151–75. 1898 Langdell, “The Creation and Transfer of Shares in Incorporated Joint-Stock Companies,” Harvard Law Review 11 (1898): 536–38. 1899 “The Status of Our New Territories,” Harvard Law Review 12 (1899): 365–92. “Patent Rights and Copy Rights,” Harvard Law Review 12 (1899): 553–56. 1900 “Classification of Rights and Wrongs,” Harvard Law Review 13 (1900): 537–56, 659–78. 1901 “Mutual Promises as a Consideration for Each Other,” Harvard Law Review 14 (1901): 496–508. 1903 “The Northern Securities Case and the Sherman Anti-Trust Act,” Harvard Law Review 16 (1903): 539–54. “The Northern Securities Case under a New Aspect,” Harvard Law Review 17 (1903): 41–44. 1904–5 “Equitable Conversion,” Harvard Law Review 18 (1904): 1–22, 83–104, 245–70; 19 (1905): 1–29, 79–96, 233–49, 321–34. These articles on equitable conversion were combined with the 1905 collection of reprinted articles and issued in a new edition of 1908. 1906 “Dominant Opinion in England during the Nineteenth Century in Relation to Legislation … ,” Harvard Law Review 19 (1906): 151–67. Appendix 2. Popular Claims on Behalf of Originators of Case Method Antedating LangdellEven the most often heard proposals on behalf of originators of case method antedating Langdell cannot withstand scrutiny. The “best-known” of these is the English barrister, John W. Smith, who in 1835 published A Selection of Leading Cases on Various Branches of the Law, which began to be cited soon after Langdell’s death as the precursor to his casebook.206 Yet, anyone who looks beyond the title and examines the text finds a great chasm between the books of Smith and Langdell. Smith’s was intended as a handy reference for the practicing attorney; the accounts of the cases are Smith’s own summaries occasionally incorporating, with Smith’s apology, quotations from the original reports; and the bulk of the work is given over to Smith’s explanation of the “leading cases” with points of doctrine precisely specified, while lesser cases are sometimes presented by a one-sentence rule and Smith’s summary of the report.207 In contrast, Langdell’s Cases on Contracts was “Prepared for Use as a Text-Book,” presents the original reports, and eliminates headnotes or helps for the reader, who is forced to puzzle out the meaning of the original documents. Another, often proposed, originator of case method antedating Langdell is William G. Hammond of the University of Iowa. But the source cited, for example, by Paul Carrington, on behalf of this proposal actually states that Hammond “did not follow what is now generally known as the case system … but he originated a method of his own which nearly approached it….”208 This method was illustrative rather than inductive, because Hammond proposed giving students, in advance, an analytical syllabus of legal doctrines indicating cases to be read illustrating the correlated doctrine. Furthermore, there is “no evidence that the class discussion or recitation was conducted in a Socratic mode.”209 In 1876 Hammond affirmed that the study of cases “has very decided merits” but “can never become the sole one in a law course” and made no reference to having practiced or pioneered the method.210 The final, most often cited originator of case method antedating Langdell is John Norton Pomeroy, the lone professor of law at New York University in the late 1860s and the founding professor of Hastings College of Law in San Francisco from 1878 until his death in 1885. The original source for this claim is a biographical essay about Pomeroy written by his son in 1909, who quoted a memorial tribute to Pomeroy spoken by Elihu Root to the alumni of the New York University Law School in 1885. Root recalled how, in the late 1860s, he and the other “few students” met the lone professor, Pomeroy, in the library and pursued “studies interspersed with occasional questions and answers and discussions, and impromptu moot courts coming up without any premeditation… .” From these words, Pomeroy, Jr., inferred that his father “anticipated by several years, most of the essentials of the method introduced … by Professor Langdell.”211 That conclusion was then adopted by a biographer of Elihu Root and subsequent historians.212 The conclusion is doubtful in as much as Root made no such inference, and his words do not actually describe Pomeroy teaching a class from cases and were not so construed until by Pomeroy’s son after Langdell’s death.213 The pre-1909 view of Pomeroy’s teaching comports with the opinion that case method “was introduced … by Professor Langdell.”214 Beyond those points, the 1909 conclusion of Pomeroy Jr. may be doubted because he himself abandoned it. In his own review of the Redlich Report a few years later, Pomeroy Jr. speaks of Langdell as the “inventor” and, like Redlich (who was actively seeking non-Harvard figures to whom he could attribute case method), does not mention his father at all.215 In sum, these appeals to Smith, Hammond, and Pomeroy fit the pattern of neglecting the evidence for the sake of conforming to the revisionist depreciation of Langdell, inaugurated in the 1910s. Bruce A. Kimball is a professor at the Warner Graduate School of Education, University of Rochester <[email protected]>. The author wishes to thank R. Blake Brown, Daniel R. Coquillette, Daniel Hamilton, David Warrington, J. Gravett Hook, Mary Beth Basile, John H. Schlegel, Thomas Grey, Christopher Tomlins, and three anonymous reviewers for their feedback, which aided in writing and revising this essay. The author also gratefully acknowledges that financial support for this research was received from the Spencer Foundation, the James Barr Ames Foundation, and the American Council of Learned Societies. Notes1. Quotation is from Stephen A. Siegel, “John Chipman Gray and the Moral Basis of Classical Legal Thought,” Iowa Law Review 86 (2001): 1515n9. See Daniel R. Coquillette, Daniel Hamilton, and Mary Beth Basile, Typescripts on file of extensive interviews conducted with deans of selected law schools in Fall 2002, Modern Legal Pedagogy Project, funded by the Spencer Foundation and located at Harvard Law School.2. The following tentative interpretation draws partly from these essays, in which citations to many of the original sources may be found: Bruce A. Kimball, “‘Warn Students That I Entertain Heretical Opinions, Which They Are Not to Take as Law’: The Inception of Case Method Teaching in the Classrooms of the Early C. C. Langdell, 1870–1883,” Law and History Review 17 (1999): 57–140; Kimball, “Young Christopher Langdell: The Formation of an Educational Reformer 1826–1854,” Journal of Legal Education 52 (June 2002): 189–239; R. Blake Brown and Bruce A. Kimball, “When Holmes Borrowed from Langdell: The ‘Ultra Legal’ Formalism and Public Policy of Northern Securities (1904),” American Journal of Legal History 45 (2001 [published in 2004]): 278–321; Kimball and R. Blake Brown, “‘The Highest Legal Ability in the Country’: Langdell on Wall Street, 1855–1870,” forthcoming in Law and Social Inquiry (Spring 2004).3. Quotation is from “C. C. Langdell … Finding Aid,” Harvard Law School Library, Special Collections (typescript removed from circulation). See now Bruce A. Kimball and Molly McGinn Shapiro, “Finding Guide to the Papers of Christopher Columbus Langdell (1826–1906),” Harvard Law School Library, Special Collections (Fall 2003). I wish to thank Molly McGinn Shapiro for her meticulous work, David Warrington and David Ferris for their cooperation and help, and the James Barr Ames Foundation for its support of this analysis of the Langdell Papers.4. See Appendix 1.5. Quotations are, respectively, from: “Prof. Christopher C. Langdell,” New York Tribune (7 July 1906): 7; “Dean Langdell,” Boston Daily Advertiser (7 July 1906): 4; “Professor Langdell Is Dead,” Boston Evening Record (6 July 1906): 1; “Prof. Langdell,” Boston Herald (7 July 1906): 6.6. Eugene Wambaugh, “Professor Langdell and the Study of Law,” Nation 83 (12 July 1906): 30. Reprinted as Eugene Wambaugh, “Professor Langdell—A View of His Career,” Harvard Law Review 20 (1906): 1–4. Unless otherwise noted, information about the careers of Wambaugh and other HLS graduates below is drawn from Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America (New York: Lewis, 1908), vol. 3; The Centennial History of the Harvard Law School, 1817–1917 (Cambridge: Harvard Law School Assoc., 1918); Quinquennial Catalogue of the Law School of Harvard University, 1817–1934, ed. Guy H. Holliday (Cambridge: Harvard Law School, 1934).7. Frederick Pollock, “The Late Professor Langdell,” Law Quarterly Review 88 (1906): 353–55.8. C. C. Langdell, “Memoranda Concerning Law School Students, September, 1870, to July, 1873,” Bound Manuscript Collection, Harvard Law School Library, p. 29, #118, 7 Oct. 1870; “Pow Wow Club Records and Case Reports of Supreme Court, 1870–1882,” bound manuscript in Pow Wow Club Records, Harvard Law School Library, pp. 7, 18.9. Austen G. Fox, “Professor Langdell—His Personal Influence,” Harvard Law Review 20 (1906): 7–8. See, too, Warren, Harvard Law School, 2:373; Samuel F. Batchelder, “Christopher C. Langdell,” Green Bag 18 (1906): 440.10. James Barr Ames, “Professor Langdell—His Services to Legal Education,” Harvard Law Review 20 (1906): 12–13. See, too, [James Barr Ames,] “Christopher C. Langdell,” Harvard Graduates’ Magazine 15 (1906): 209–12.11. Jeremiah Smith, “Professor Langdell—His Student Life,” Harvard Law Review 20 (1906): 5–6; Jeremiah Smith, “Christopher Columbus Langdell ’45,” in Bulletin of the Phil-lips Exeter Academy (Sept. 1906): 27–32; Jeremiah Smith, “Prof. Christopher C. Langdell,” Proceedings of the New Hampshire Bar Association 2 (n.s.) (1904–1908): 340–48. “Obituaries [Jeremiah Smith],” Bulletin of the Phillips Exeter Academy (January 1922): 18–19. For providing information about Smith, I am grateful to Edouard Desrochers, Archivist, Phillips Exeter Academy Library.12. Steve Sheppard, ed., The History of Legal Education in the United States (Pasadena: Salem Press, 1999), 1:523.13. Joseph H. Beale, Jr., “Professor Langdell—His Later Teaching Days,” Harvard Law Review 20 (1906): 9–11.14. Samuel F. Batchelder, “Christopher C. Langdell,” Green Bag 18 (August 1906): 437–43. See Warren, Harvard Law School, 2:372–73; Centennial History, vi, 34–35; Sheppard, ed., The History of Legal Education, 1: 26.15. “Manuscript Class Book of the Class of 1851 of Harvard College,” Harvard University Archives, 168–69; Minutes of Vestry Meetings of Christ Church, 1883–1907, in Vestry Minutes of Christ Church, Cambridge, 1862–1904 and Vestry Minutes of Christ Church, Cambridge, 1905–1927, Archives of Christ Church, Cambridge, Massachusetts; Samuel F. Batchelder, “C. C. Langdell, Iconoclast,” in Bits of Harvard History (Cambridge: Harvard University Press, 1924), 323n.16. Batchelder, “C. C. Langdell, Iconoclast,” 323n; Batchelder, “Christopher C. Langdell,” 440–41. “Manuscript and Research Notes,” Samuel F. Batchelder Papers, Cambridge Historical Society, Cambridge, Mass., box 5. I am grateful to Aurore Eaton, Executive Director of the Cambridge Historical Society, for her exceptional cooperation with the investigation of Batchelder’s papers during Fall 2000.17. See Emory Washburn, “Harvard Law School,” (c.1877), 44 pp., in Samuel F. Batch-elder Papers, Cambridge Historical Society box 2, folder 14; Letter from George O. Shattuck to Charles W. Eliot (17 December 1869), Charles W. Eliot Papers, Harvard University Archives, box 66; Letter from Victor Morawetz to James B. Thayer (15 April 1882), James Bradley Thayer Papers, Harvard Law School Library, box 20, f. 1; Joseph H. Choate, “Address,” in Harvard Law School Association, Report of the Ninth Annual Meeting at Cambridge, June 25, 1895, in Especial Honor of Christopher Columbus Langdell (Boston: Harvard Law School Assoc., 1895), 63; Franklin G. Fessenden, “Rebirth of the Harvard Law School,” Harvard Law Review 33 (1920): 513; Letter from Joseph H. Choate to Samuel F. Batchelder (18 July 1906); Letter from Joseph H. Choate to Charles Warren (18 Oct. 1907), Charles Warren Papers, Harvard Law School Library, box 37.18. Batchelder, “Christopher C. Langdell,” 439. Cf. Samuel F. Batchelder, Unpaginated sheets of draft biography of C. C. Langdell, in Batchelder Papers, box 5, f. 2.19. Batchelder, “Christopher C. Langdell,” 439–41.20. William Schofield, “Christopher Columbus Langdell,” American Law Register 55 o.s., 46 n.s. (1907): 273–96; Warren, Harvard Law School, 2: 455, 455–60.21. Schofield, “Christopher Columbus Langdell,” 277–78.22. Ibid., 282–92.23. Ibid., 292. John Bouvier, A Law Dictionary Adapted To The Constitution And Laws Of The United States Of America, 12th edition, 2 vols. (Philadelphia: George W. Childs, 1868), s.v. Alimony, Condonation, Divorce, Nullity of Marriage, Promise of Marriage, and Separation a Mensa et Thoro. These articles are not mentioned again until Schofield’s reference is cited by William P. LaPiana, Logic and Experience: The Origin of Modern American Legal Education (New York: Oxford University Press, 1994), 191n78.24. LaPiana, Logic and Experience, 191n75. See, too, W. Burlette Carter, “Reconstructing Langdell,” Georgia Law Review 32 (1997): 15n43. Ames’s essay is “Christopher Columbus Langdell, 1826–1906,” 465–89, in Great American Lawyers, ed. William D. Lewis (Philadelphia: John C. Wilson, 1909), vol. 8; reprinted in Ames, Lectures on Legal History and Miscellaneous Essays (Cambridge: Harvard University Press, 1913), 467–82.25. Letter from Hannah Warner to Mildred C. Warren of New Boston, New Hampshire, quoted in Frances A. Atwood in Old Folks’ Day, New Boston, N.H., June 13, 1907, Thirteenth Reunion (Manchester, N.H.: John B. Clarke, 1908), 11–12; Ames, “Christopher Columbus Langdell, 1826–1906,” 469; Program of “Performance for Exhibition,” Harvard College, 16 October 1849, in “Charles F. Dunbar Personal and Professional Correspondence,” Harvard University Archives, 1 box, f. H-L Correspondence, Professional; Gorham, “Diary,” 8 Sept. 1849. Unfortunately, the notes and sources for Ames’s undocumented essay have not been located, nor could a file be found regarding the Langdell essay among the editor’s papers at the University of Pennsylvania. I am grateful to Cynthia Arkin, Associate Director of Special Collections at the University of Pennsylvania Law School, and Chris Rooney, Research Assistant, University of Pennsylvania Archives, for their help in investigating their holdings in February 2001. I am also grateful to R. Blake Brown for searching for papers by James Barr Ames in the archives at Harvard, the Massachusetts Historical Society, the Boston Athenaeum, the Cambridge Historical Society, and the New Hampshire Historical Society, as well as on the World-Wide Web.26.Kuhn, Administrator v. Webster & Others, 78 Mass. (12 Gray) 3 (1858); Delafield v. Parish 1 Redf.Surr. 1 (N.Y. Surrogate’s Court 1857).27. Quotations are from Ames, “Christopher Columbus Langdell, 1826–1906,” 476, 481, 483.28. Ibid., 467n; see also 466–68.29. Quotation is from Schofield, “Christopher Columbus Langdell,” 277. See Ames, “Christopher Columbus Langdell, 1826–1906,” 485.30. Warren, Harvard Law School, 2:175–202, 302–31, 354–460.31. Quotations are from ibid., 2:302–3. [Letters from 1907 and 1908 giving Reminiscences of Harvard Law School], Charles Warren Papers, box 37. These letters were apparently not consulted or cited again in the twentieth century until LaPiana, Logic and Experience, 14, 51–53, 70, 191n78.32. Quotations are, respectively, from Warren, Harvard Law School, 2:333, 335, 132, 388. See ibid., 419–60.33. Ibid., 2:395.34. Josef Redlich, The Common Law and the Case Method in American University Law Schools (New York: Carnegie Foundation for the Advancement of Teaching, 1914), Bulletin No. 8, pp. 3–4, 26. Quotations are from pp. 5, 4.35. Quotations are, respectively, from Letter from Charles Noble Gregory (Dean of George Washington Univ.) to Ezra Ripley Thayer (4 Oct. 1913), and Letter from Ezra Ripley Thayer to Charles Noble Gregory (8 Oct. 1913), Ezra Ripley Thayer Papers, Harvard Law School Library, box 9, f. 2. See similar letters in folder.36. Redlich, The Common Law and the Case Method, 9–21.37. Ibid., 23, 24. In 1940 the Carnegie Foundation gave to Harvard Law School Library the original German text and successive revisions and four translations of Redlich’s report. Alfred Z. Reed, who commissioned Redlich’s study for the Carnegie Foundation, reviewed and revised each translation, and it was he who inserted subtitles and highlighted as distinctive this new thesis, although Redlich’s interpretation appears in the original German text. “Redlich Bulletin, [Version] V. Translation B., Reed’s revision of A.” Typescript, annotated in pencil. Pages 36–38 in Josef Redlich, “Case teaching system in the law schools of American universities and the common law,” 1914, Typewritten with MS notes, in Special Collections, Harvard Law School Library.38. Redlich, The Common Law and the Case Method, 24–25. In support, Redlich quoted Ames, although the quotation does not identify any shift in purpose; and Redlich himself noted parenthetically in his draft that “(quotation does not seem correct).” “Redlich Bulletin, [Version] V. Translation B., Reed’s revision of A.” Typescript, annotated in pencil. Pages 39–40 in Josef Redlich, “Case teaching system in the law schools of American universities and the common law,” 1914, Typewritten with MS notes, in Special Collections, Harvard Law School Library.39. Letter from Frank W. Grinnell to Zechariah Chafee, Jr. (24 Feb. 1925), Zechariah Chafee, Jr., Papers, Harvard Law School Library, #913. All subsequent citations to the Chafee Papers are to microfilm reel 51.40. Quotation is from Letter from Frank W. Grinnell to Zechariah Chafee, Jr. (17 April 1918), Chafee Papers, #957. See Letter from Chafee to Joseph N. Walsh (17 Oct. 1928), #872; Letter from Chafee to Frank W. Grinnell (14 Nov. 1928), #879; Letter from Chafee to Frank W. Grinnell (4 March 1931), #863, in Chafee Papers.41. See, for example, Samuel Williston, “Christopher Columbus Langdell, Dictionary of American Biography (New York: Charles Scribner’s Sons, 1933), 10:585–86; Robert Stevens, “Law Schools and Legal Education, 1879–1979: Lectures in Honor of 100 Years of Valparaiso Law School,” Valparaiso University Law Review 14 (1980): 218nn172–73; Donald B. King, Legal Education for the 21st Century (Buffalo: Fred B. Rothman, 1999), 548. The indirect influence is even more widespread, as seen in key theses of the Centennial History being invoked from Robert Stevens’s work in, for example, Michael H. Hoeflich, “Law & Geometry: Legal Science from Leibniz to Langdell,” American Journal of Legal History 30 (1986): 95, 95n2.42. Mary B. MacManamon, “The History of the Civil Procedure Course: A Study in Evolving Pedagogy,” Arizona State Law Journal 30 (1998): 417.43.Centennial History, 170–74.44. Letters in Chafee Papers, #839–989. See Donald L. Smith, Zechariah Chafee, Jr.: Defender of Liberty and Law (Cambridge: Harvard University Press, 1986).45. Letter from Joseph H. Beale to Roscoe Pound (20 Dec. 1916), Chafee Papers, #989.46. Quotations are, respectively, from Centennial History, 9, 37, 81. Commensurately, the appended biography of Ames (pp. 175–89) exceeds that of Langdell (pp. 223–36.)47.Centennial History, 42, 47–48, 139, 184–85; “Notes,” Harvard Law Review 1 (1887–88): 100; 5 (1891–92): 89–90, 147, 238.48. William A. Keener, “Address,” in Harvard Law School Association, Report of the Ninth Annual Meeting at Cambridge, June 25, 1895, in Especial Honor of Christopher Columbus Langdell (Boston: Harvard Law School Assoc., 1895), 77.49. William A. Keener, A Selection of Cases on the Law of Quasi-Contracts (Cambridge, Mass.: Charles W. Sever, 1888), p. vi; Book Note, “William A. Keener, Selections on Contracts … ,”Harvard Law Review 5 (1892): 355. The scholarly history of Columbia University Law School initially cites and repeats Redlich’s interpretation on behalf of Keener, who led “the revolution of 1891” at Columbia Law School. Julius Goebel, Jr., A History of the School of Law, Columbia University (New York: Columbia University Press, 1955), 140–41. But in the end, Goebel draws back from attributing originality to Keener, saying “whether or not [these purposes] originated with Keener, to Keener undoubtedly is due the credit for their widespread acceptance” 155.50. Oliver Wendell Holmes, Jr., “Oration,” in Harvard Law School Association, Report of the Organization and of the First General Meeting, 1886 (Boston: Harvard Law School Association, 1887), 39. Emphasis added.51. Ames, “Christopher Columbus Langdell, 1826–1906,” 485; Letter from Joseph D. Brannan to James B. Thayer (3 June 1897), James Bradley Thayer Papers, Harvard Law School Library, box 17, f. 2; Schofield, “Christopher Columbus Langdell,” 273–77; Louis D. Brandeis, “The Harvard Law School,” Green Bag 1 (1889): 19. Letter from Louis D. Brandeis to Walter Bond Douglas (31 Jan. 1878), Letters of Louis D. Brandeis, ed. Melvin I. Urofsky and David W. Levy (Albany: State University of New York Press, 1971), 1:21–22.52. Beale, “His Later Teaching Days,” 10; Beale, “Papers and Discussion Concerning the Redlich Report,” American Law School Review 4 (1916): 106–7.53. Joseph H. Beale, Jr., “Langdell, Gray, Thayer, and Ames: Their Contribution to the Study and Teaching of Law,” New York University Law Quarterly Review 8 (1931): 394; See Frank L. Ellsworth, Law on the Midway: The Founding of the University of Chicago Law School (Chicago: University of Chicago Press, 1977), 49–79.54. [Joseph H. Beale,] Untitled draft of history of HLS since 1870, Chafee Papers, #906. See Samuel Williston, Life and Law: An Autobiography (Boston: Little Brown, 1940), 134, 187.55. Quotations are from “Dean of Harvard Law School Dead,” Boston Herald (9 Jan. 1910): 14.56. Julian W. Mack, “James Barr Ames—His Personal Influence,” Harvard Law Review 23 (1910): 337. See Samuel Williston, “James Barr Ames—His Services to Legal Education,” Harvard Law Review 23 (1910): 332–33.57. Quotation is from George W. Kirchwey, “James Barr Ames,” Columbia Law Review 10 (1910): 188. See Charles W. Eliot, “James Barr Ames,” Harvard Law Review 23 (1910): 322; William D. Lewis, “James Barr Ames, 1846–1869,” University of Pennsylvania Law Review 58 (1909–1910): 289–92.58. Letter from Alfred Z. Reed to Ezra Ripley Thayer (2 Oct. 1913) and Letter from Ezra R. Thayer to Alfred Z. Reed (3 Nov. 1913), Ezra Ripley Thayer Papers, box 9, f. 2.59. Goebel, A History of the School of Law, Columbia University, 140–44.60. Letter from Harlan F. Stone to Ezra R. Thayer (27 Oct. 1913), Ezra Ripley Thayer Papers, box 9, f. 2. See letters exchanged between Harlan F. Stone and Ezra R. Thayer in early October, 1913, box 9, f. 2.61. That Redlich’s attribution to Keener of a shift in purpose was instrumental or convenient is suggested by the fact that, later in his report, Redlich dropped the distinction and omitted further reference to Keener, such as in discussing the “True Significance of Langdell’s Invention in the Development of Legal Science,” 54–59. Moreover, the question of whether Redlich gave too much notice or praise to Harvard did, in fact, become a point of contention among Alfred Z. Reed and Henry Pritchett of the Carnegie Foundation and Dean Ezra Ripley Thayer and President Abbott L. Lowell at Harvard. See correspondence among these four individuals in Ezra Ripley Thayer Papers, box 8, f. 8.62. Beale, “Langdell, Gray, Thayer, and Ames,” 394. At least one of the eulogists initiating this attribution shared Beale’s affection for Ames. See Letter from Julian Mack to Charles W. Eliot (19 Sept. 1898), Charles W. Eliot Papers, box 139a, f. 1394.63. Letter from Joseph H. Choate to Charles Warren (18 Oct. 1907).64. Simeon Baldwin, Report of the Annual Meeting of the American Bar Association 17 (1894), 375–77; Simeon E. Baldwin, “Education for the Bar in the United States [reviewing the Redlich Report],” American Law School Review 4 (1915): 13. “Baldwin led the resistance to the case method within the American Bar Association.” Paul D. Carrington, “Hail! Langdell!” Law and Social Inquiry 20 (1995): 738.65. Wirt A. Cate, Lucius Q. C. Lamar, Secession and Reunion (Chapel Hill: University of North Carolina Press, 1935), 123. See also Thomas H. English, Emory University 1915–1965: A Semicentennial History (Atlanta: Emory University, 1966), 164–65.66. Daniel J. Meador, “Lamar and the Law at the University of Mississippi,” Mississippi Law Journal 34 (1963): 240. Claims on behalf of other putative originators of case method antedating Langdell are discussed in Appendix 2 below.67. Alfred Z. Reed, Training for the Public Profession of the Law (New York: Carnegie Foundation for the Advancement of Teaching, 1921), Bulletin no. 15, p. 372.68. Fessenden, “Rebirth,” 493.69. “Letter to Henry S. Pritchett” (13 April 1915), Correspondence of Charles W. Eliot, Small Manuscript Collection, Harvard Law School Library.70. Charles W. Eliot, “Langdell and the Law School,” Harvard Law Review 33 (1920): 521.71. C. C. Langdell, “Memoranda Concerning Law School Students, September, 1870, to July, 1873,” 4–5; Ames, “His Services to Legal Education,” 13; Fox, “His Personal Influence,” 7; Batchelder, “Christopher C. Langdell,” 440–41; Ames, “Christopher Columbus Langdell, 1826–1906,” 484; Fessenden, “Rebirth,” 503.72. Frank W. Grinnell, “An Unpublished Conversation with President Eliot at the Beginning of Langdell’s Teaching,” ([c.1929]; typescript, 1 page), Biographical File of Christopher Columbus Langdell, Harvard University Archives. This remarkable incident has not previously been reported in the literature. Cf. Fessenden, “Rebirth,” 503; Charles W. Eliot, Banquet in Honor of Hon. Franklin G. Fessenden, Justice of the Superior Court of Massachusetts … (Boston: Boston University Law School Assoc., 1917), 21.73. Letters between Eliot and Fessenden (19 March 1919, 28 Mar 1919, 23 April 1919, 12 May 1919, 15 July 1919, 22 July 1919), Charles W. Eliot Papers, Harvard University Archives, box 382. I am grateful to Pedro Reyes for searching in the papers of Charles W. Eliot and Franklin G. Fessenden for further materials and correspondence about their essays. Eliot’s article, scarcely mentioned in their correspondence, was evidently written as a shorter companion to Fessenden’s piece.74. Quotations are, respectively, from Fessenden, “Rebirth,” 498, 500, 508.75. Quotations are, respectively, from ibid., 502, 514.76. Letter from Charles W. Eliot to Franklin G. Fessenden (19 Mar 1919), Charles W. Eliot Papers, Harvard University Archives, box 382, f. A–J.77. Samuel Williston, however, seemed to shift his view subsequently. In one prominent article, he credited the invention of case method entirely to Langdell, saying merely that Keener’s and Ames’s “success in applying [Langdell’s] method did much to popularize it.” “Christopher Columbus Langdell,” 586. In his autobiography, Williston’s view of whether, how, and when case method teaching was fully developed is somewhat ambiguous, as he appears to try to spread the credit evenly among Langdell, Ames, Keener, James B. Thayer, and John C. Gray. Williston, Life and Law, 74, 76, 132, 199–201.78. In his role as the faculty supervisor of the Harvard Law Review, Beale had to arrange for the publication of the two essays and so was well aware of them. In the surviving correspondence in this regard, Fessenden’s references to Beale (to whom he did not send a draft of his essay) are distinctly unfriendly. Letters from Fessenden to Eliot (18 July 1919, 22 July 1919), Charles W. Eliot Papers, Harvard University Archives, box 382, f. A–J.79. Letter from Samuel E. Morison to Zechariah Chafee, Jr. (27 June 1928), Chafee Papers, #893.80. [Beale,] Untitled draft of history of HLS since 1870, Chafee Papers, #904.81. Letter from Samuel E. Morison to Zechariah Chafee, Jr. (27 June 1927), Chafee Papers, #893; [Beale,] Untitled draft of narrative history of HLS since 1870, #906.82. Roscoe Pound, “The Law School, 1817–1929,” 475, 479, in Samuel E. Morison, The Development of Harvard University since the Inauguration of President Eliot 1869–1929 (Cambridge: Harvard University Press, 1930).83. Beale, “Langdell, Gray, Thayer, and Ames,” 394.84. Ibid., 385, 387, 386, 388. This anomalous mention of Langdell’s “resentment” seems to refer to an incident described in Williston, Life and Law, 138.85. On “Bealism,” see Jerome Frank, Law and the Modern Mind (New York: Brentano’s, 1930), 48–56.86. Williston’s 1933 article in the Dictionary of American Biography credited Langdell with virtually all of the salutary reforms at HLS and made no mention of realism. In 1940 Williston qualified or obviated much of that credit while endorsing the shift to pragmatic, contextual, and realist jurisprudence. Cf. Williston, “Christopher Columbus Langdell,” 585–86; Williston, Life and Law, 199–210.87. Beale, “Langdell, Gray, Thayer, and Ames,” 385–95; Sheppard, ed., The History of Legal Education, 1:522–27.88. LaPiana, Logic and Experience, 3. See Gordon, “The Case for (and against) Harvard,” Michigan Law Review 93 (1995): 1235.89. William W. Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937 (New York: Oxford University Press, 1998), 4–14, 92–93.90. An example of this point is discussed in B. A. Kimball, “The Life of Langdell Has Not Been Logic; It Has Been Experience,” Law and History Review 17 (1999): 156.91. Batchelder, “Wanted!—College Characters,” in Bits of Harvard History (Cambridge: Harvard University Press, 1924), 262, 296, 287–88.92. Batchelder, “C. C. Langdell, Iconoclast,” 303.93. “Article on Langdell in CENTENNIAL HISTORY HARV. LAW SCHOOL … ,” and Annotated copy of “Christopher C. Langdell [1906],” Batchelder Papers, box 5, f. 2, box 6, f. 6.94. Samuel F. Batchelder, Annotated copy of “Christopher C. Langdell [1906],” Batch-elder Papers, box 6, f. 6, p. 443; Batchelder, “C. C. Langdell, Iconoclast,” 318n1; see also 312, 312n1.95. The legacy of Batchelder’s inconsistency can be seen in a recent essay citing evidence supporting Batchelder’s 1906 version on behalf of the view that Langdell’s “method was Socratic” as well as evidence supporting “the conventional view” of a dogmatic and didactic Langdell. Curtis W. Nyquist, “A Contract Tale from the Crypt,” Houston Law Review 30 (1993): 1231n149, 1232n151. Similarly, another scholar writes, “Contemporary opinions of Langdell’s teaching were mixed, but predominantly negative: most of his students thought him boring and his Socratic technique incomprehensible.” Wiecek, The Lost World of Classical Legal Thought, 93–94.96. Letter from Joseph H. Beale to Samuel F. Batchelder (14 November 1922), Batchelder Papers, box 4, f. 5.97. Laura Kalman, Legal Realism at Yale, 1927–1960 (Chapel Hill: University of North Carolina Press, 1986), 3.98. Williston, Life and Law, 208–9. Williston’s statement reveals how by 1940 even those regarded as “rigorously a Langdellian Legal scientist” by current scholars had been forced to accommodate themselves to Realist arguments. Quotation is from Siegel, “John Chipman Gray,” 1591.99. Langdell, Summary of the Law of Contracts, 20–21; [Oliver Wendell Holmes, Jr.], “[Review of] A Selection of Cases on the Law of Contracts … by C. C. Langdell … 1879 [and]Principles of the English Law of Contract. By Sir William R. Anson,” American Law Review 14 (1880): 234.100. Quotations are, respectively, from: Steven J. Burton, “Introduction,” p. 1, in The Path of the Law and Its Influence: The Legacy of O. W. Holmes, Jr., ed. Burton (New York: Cambridge University Press, 2000); Richard Posner quoted in Albert W. Alschuler, Law without Values: The Life, Work, and Legacy of Justice Holmes (Chicago: University of Chicago Press, 2000), 92. See Oliver Wendell Holmes, Jr., The Common Law (Boston: Little, Brown, 1881), 1.101. Saul Touster, “Holmes a Hundred Years Ago: The Common Law and Legal Theory,” Hofstra Law Review 10 (1982): 675. See Felix Frankfurter, ed., Mr. Justice Holmes (New York: Coward-McCann, 1931); G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (New York: Oxford University Press, 1993), 3, 171.102. See, for example, Harry C. Shriver, Justice Oliver Wendell Holmes: His Book Notices and Uncollected Letters and Papers (New York: Central Book, 1936).103. LaPiana, Logic and Experience, 3, 172n4.104. Jerome Frank, Law and the Modern Mind, with an introduction by Julian W. Mack (New York: Brentano’s, 1930). Already in 1974, this work was identified by Daedalus as one of the classics of the twentieth century. Bruce A. Ackerman, “[Review of] Law and the Modern Mind by Jerome Frank,” Daedalus 103 (1974): 119–27.105. Jerome Frank, “Why Not a Clinical Lawyer-School?” University of Pennsylvania Law Review 81 (1933): 907–8.106. Quotations are, respectively, from ibid., 911, 921, 919.107. Ibid., 907–8. See Centennial History, 226–27.108. Jerome Frank, “A Plea for Lawyer-Schools,” Yale Law Journal 56 (1947): 1303–4.109. See, for example, Preble Stolz, “Clinical Experience in American Legal Education: Why Has It Failed?” Clinical Education and the Law School of the Future, Resource Papers of the Conference [on law students in court] Held … at the University of Chicago, ed. Edmund W. Kitch (Chicago: University of Chicago Law School, 1969), 72; Bernard Schwartz, Main Currents in American Legal Thought (Durham: Carolina Academic Press, 1993), 346nn518–19. See the acute criticism of Frank’s interpretation in Anthony Chase, “The Birth of the Modern Law School,” American Journal of Legal History 23 (1979): 330–31.110. Mark DeWolfe Howe, “Introduction,” p. xiiin5, in Oliver Wendell Holmes, The Common Law (1881), edited by Howe (Cambridge: Harvard University Press, 1963). J. W. Burrow, “Holmes in his Intellectual Milieu,” in The Legacy Of Oliver Wendell Holmes, Jr., ed. Robert W. Gordon (Stanford: Stanford University Press, 1992), 23–24; Thomas Grey, “Holmes and Legal Pragmatism,” Stanford Law Review 41 (1989): 788n6; LaPiana, Logic and Experience, 202n6.111. Philip Wiener, Evolution and the Founders of Pragmatism (Cambridge: Harvard University Press, 1949), 26, 152.112. Ibid., 153.113. Holmes, “Oration,” 39–40. See Patrick J. Kelley, “A Critical Analysis of Holmes’s Theory of Contract,” Notre Dame Law Review 75 (2000): 1756–57; Brown and Kimball, “When Holmes Borrowed from Langdell,” sect. I.114. HLS, Faculty Minutes, Microfilm ed., 26 June 1871, 24 June 1872.115. Stevens, “Law Schools and Legal Education, 1879–1979,” 211.116. Quotations are from Wiener, Evolution, 153, 238, 232, 235n2. Cf. Batchelder, “Langdell, Iconoclast,” 318n1.117. Batchelder, “Christopher C. Langdell,” 440; Batchelder, “C. C. Langdell, Iconoclast,” 323n.118. James W. Hurst, The Growth of American Law: The Law Makers (Boston: Little, Brown, 1950), v, 261–69. Hurst then becomes the authority for Lawrence M. Friedman, A History of American Law, 2d ed. (New York: Simon and Schuster, 1985), 613n20.119. Quotations are from Grant Gilmore, The Death of Contract (Columbus: Ohio State University Press, 1974), 6, 13, 12, 97–98.120. Grant Gilmore, The Ages of American Law (New York: Yale University Press, 1977), 42.121. Gilmore, Death of Contract, 107–10. Arthur E. Sutherland, The Law at Harvard: A History of Men and Ideas, 1817–1967 (Cambridge: Harvard University Press, 1967), 162–205. Similar reliance upon the Sutherland sediment as bedrock authority—while nevertheless rejecting Gilmore’s interpretation—is found in the introduction to the republication of Langdell’s first casebook: Thomas G. Barnes, “Introduction” to Christopher Columbus Langdell, Selection of Cases on the Law of Contracts (reprint of the 1871 edition, Birmingham, Al.: Legal Classics Library, 1983), 27–28.122. Gilmore, Ages of American Law, 124–26. Gilmore also makes passing reference to Robert E. Stevens, “Two Cheers for 1870: The American Law School,” Perspectives in American History 5 (1871): 403–548.123. Quotations are from Gilmore, Death of Contract, 13. See echoes in Gilmore, Ages of American Law, 125n3.124. Langdell, A Summary of Equity Pleading (1877), iii.125. [Holmes,] “[Review of] A Selection of Cases on the Law of Contracts,” 234.126. Gilmore, Ages of American Law, 42.127. Gilmore’s books, or excerpts thereof, were assigned annually in the courses in American Legal History taught by Morton Horwitz, even though Horwitz was rather critical in reviewing Gilmore’s Ages of American Law in Buffalo Law Review 27 (1978): 47–53, asserting that “Gilmore’s generation is thus forever locked in the particular dogmas of the way it has chosen to define the vices of formalism” 53.128. Quotations are, respectively, from Hoeflich, “Law & Geometry: Legal Science from Leibniz to Langdell,” 121n100, and Nyquist, “A Contract Tale from the Crypt,” 1232n151. See E. Allan Farnsworth, “Contracts Scholarship in the Age of Anthology,” University of Michigan Law Review 85 (1987): 1412; Kevin M. Teeven, A History of the Anglo-American Common Law of Contract (Westport, Conn.: Greenwood Press, 1990), 218; Dennis Patterson, “Langdell’s Legacy,” in “Symposium, Reconsidering Grant Gilmore’s The Death of Contract,”Northwestern University Law Review 90 (Fall 1995): 200n22, 201; Wiecek, The Lost World of Classical Legal Thought … , 93.129. Allen D. Boyer, “Book Review, Logic and Experience … by William LaPiana,” Cornell Law Review 80 (1995): 371n53.130. Marcia Speziale, “Langdell’s Concept of Law as Science: The Beginning of Antiformalism in American Legal Theory,” Vermont Law Review 5 (1980): 1–2.131. Mathias W. Reimann, “Holmes’s Common Law and German Legal Science,” in The Legacy of Oliver Wendell Holmes, Jr., ed. Robert W. Gordon (Stanford: Stanford University Press, 1992), 2674n166; Boyer, “Book Review, Logic and Experience,” 363n9; Patterson, “Langdell’s Legacy,” 197n3; Carter, “Reconstructing Langdell,” 8n21; Kelley, “A Critical Analysis of Holmes’s Theory of Contract,” 1703n97.132. Quotations are, respectively, from Speziale, “Langdell’s Concept of Law as Science,” 20, 37, 29. Emphasis added.133. See Roberto M. Unger, The Critical Legal Studies Movement (Cambridge: Harvard University Press, 1986); Grey, “Holmes and Legal Pragmatism,” 787–870; Michael S. Moore, “The Interpretive Turn in Modern Theory: A Turn for the Worse?” Stanford Law Review 41 (1989): 871–957.134. See Hoeflich, “Law & Geometry: Legal Science from Leibniz to Langdell,” 95–121. Howard Schweber does not identify evidence directly linking his insightful analysis of Protestant Baconianism with Langdell, who “did not leave an extensive written record, forcing historians to rely greatly on Eliot’s characterizations.” See Schweber, “Before Langdell: The Roots of American Legal Science,” in The History of Legal Education, ed. Sheppard, 5: 630.135. Anthony Chase, “Origins of Modern Professional Education: The Harvard Case Method Conceived as Clinical Instruction in Law,” Nova Law Journal 5 (1981): 340–41; Anthony Chase, “The Birth of the Modern Law School,” American Journal of Legal History 23 (1979): 331–32. See Joel Seligman, The High Citadel: The Influence of Harvard Law School (Boston: Houghton Mifflin, 1978), 28–42.136. Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill: University of North Carolina Press, 1983), 36, 55, 44nn15–17; LaPiana, Logic and Experience, 172n4; Boyer, “Book Review, Logic and Experience,” 363n9; Gordon, “The Case for (and against) Harvard,” 1241–42; Carter, “Reconstructing Langdell,” 8n21.137. Chase, “The Birth of the Modern Law School,” 332, 336, 338, 340–41. To account for the absence of testimony from Eliot or anyone else about Eliot’s determinative role, Chase maintains that Eliot “could afford the luxury of modesty.” In response to Eliot’s own testimony attributing the origin of case method to Langdell, Chase asserts that Eliot was “willing to confuse at times exactly who was responsible for what” (345).138. Chase, “The Birth of the Modern Law School,” 341–42; Chase, “Origins of Modern Professional Education,” 330n20. Eliot states that experience in a law office and courtroom is the true analogue to clinical medical education in a hospital, but since a law student spending time in court “would waste his time,” then “the law library … is the real analogue of the hospital” (quoted in Chase, “The Birth of the Modern Law School,” 341–42). In other words, Eliot says that legal case method is not truly analogous to clinical, medical education, but the closest that HLS comes. Chase concedes that Eliot’s “indirect” analogy has created “confusion” in the minds of subsequent proponents of clinical education who have missed the point that case method was originally understood as a legal adaptation of clinical, medical education (Chase, “Origins of Modern Professional Education,” 333, 335–40). However, HLS professor Emory Washburn interpreted the same quotation of Eliot discussed by Chase as objecting to clinical teaching, that is, teaching by faculty in the course of professional practice. Washburn, “Harvard Law School,” p. 8v. Jerome Frank also argued that written case reports in case-books did not reflect the experience of a legal dispute and that law schools should replace case method with the clinical model of medical education (Frank, “Why Not a Clinical Lawyer-School?” 916–17). Similarly, “clinical education” programs in current law schools operate on Frank’s definition, not Chase’s.139. Chase, “The Birth of the Modern Law School,” 346. On Foucault, see p. 344.140. Quotations are, respectively, from Chase, “Origins of Modern Professional Education,” 328, 355.141. Grant Gilmore, Death of Contract, 12. The perseverance of the dilemma and inadvertence strategy in substantive reassessment is shown by Paul D. Carrington, who expresses “gratitude to Langdell for serving a benign cause in which he may never have believed, by making a contribution that he gave no indication of understanding…. Langdell’s [case] method was less radical and more useful than he supposed because of its utility to law teachers working in the tradition … of teaching law in support of constitutional democracy” (“Hail! Langdell!” 693; emphasis added). Without intending or understanding or agreeing, says Carrington, Langdell made a benign contribution by introducing case method, though it seems that Langdell was not the originator, either (735–76). In this way, Carrington’s inadvertence strategy is unsatisfying because if Langdell did not intend, understand, or condone something that he did not originate, then why should the benign contribution be associated with him at all?142. Quotation is from Patterson, “Langdell’s Legacy,” 198. See, for example, Reimann, “Holmes’s Common Law and German Legal Science,” 256n98; LaPiana, Logic and Experience, 187n11; Gordon, “The Case for (and against) Harvard,” 1237; Kelley, “A Critical Analysis of Holmes’s Theory of Contract,” 1703n97; Siegel, “John Chipman Gray,” 1520–26.143. Thomas C. Grey, “Langdell’s Orthodoxy,” University of Pittsburgh Law Review 45 (1983): 14.144. Ibid., 2, 2n6, 39.145. Quotation is from ibid., 27. See 25–27, 48.146. Ibid., 10.147. Langdell, Summary of the Law of Contracts, 20–21; Grey, “Langdell’s Orthodoxy,” 4.148. Grey, “Langdell’s Orthodoxy,” 3. See 40, 11n35. Nevertheless, Grey insightfully acknowledges that Holmes shared many premises of “classical orthodoxy” and that scholars have found “contradictions between the formalist elements in Holmes doctrinal writing and his famous realist jurisprudential aphorisms” (ibid., 4, 4n13.). Subsequently, Grey contributed to the scholarship analyzing those contradictions, while the absence of further articles on Langdell suggests that Grey regards his treatment of “Langdell’s Orthodoxy” as determinative. See Grey, “Holmes and Legal Pragmatism,” Stanford Law Review 41 (1989): 787–870; “Plotting the Path of the Law,” Brooklyn Law Review 63 (1997): 19–58; “Holmes on the Logic of the Law,” in Burton, ed., Path of the Law and Its Influence, 133–57.149. Grey, “Langdell’s Orthodoxy,” 16.150. Ibid., 18. Grey’s recognition of Langdell’s inductive approach corrected Gilmore’s misunderstanding, which was nevertheless subsequently endorsed. Patterson, “Langdell’s Legacy,” 200n22.151. Grey, “Langdell’s Orthodoxy,” 18. This inference of a causal link from the analogy between Mill’s logic and Grey’s view of Langdell’s legal science is more plausible than, but analogous to, the speculative arguments of Speziale, Schweber, and Hoeflich, discussed above.152. Quotations are drawn from Grey, “Langdell’s Orthodoxy,” 13, 14, 15. By contrast, Langdell, in the emerging view sketched at the outset, appears (i) to regard justice as the end served by doctrinal coherence and (ii) to regard some specific decisions as unjust when they violate doctrinal coherence. According to this tentative, emerging view, Langdell seems to disagree with Grey’s premise that justice could be known by a judge apart from doctrinal coherence. The question is not whether justice should influence specific decisions, as Grey frames it, but whether the conception in a judge’s mind that Grey calls justice is merely what Langdell calls “the private judgment or will or caprice of any man.” Letter from Langdell to Joseph R. Webster (19 August 1856) in Christopher Columbus Langdell Papers, Special Collections, Harvard Law School Library, f. 10–11.153. Grey, “Langdell’s Orthodoxy,” 40. See ibid., 6. The ironical formalism of Grey’s analysis is shown in language such as “classical orthodoxy sought objective tests … ” or “the heart of classical orthodoxy was its aspirations that …” (ibid., 11). This treatment of a conceptual category as an “ontologically robust, reified, animated” entity is precisely what dismissive critics have considered to be quintessentially formalistic about Langdell, as when he says “Equity will find” such and such. Pierre Schlag, “Law and Phrenology,” Harvard Law Review 110 (1997): 900–901.154. Grey, “Langdell’s Orthodoxy,” 2n3, 13n44.155. Ibid., 24.156. The only justification Grey gives for this sharp distinction between pedagogy and jurisprudence is that “articulate critics of the latter were at the same time defenders and practitioners of the former.” Ibid., 2n3. Only Holmes is cited in this connection, so it seems that Holmes’s interpretation of Langdell is governing and that, since Holmes approved one aspect of Langdell’s work and not another, the two aspects must be “independent” in principle. The weakness of this reasoning can be shown by pointing out that no scholar would want to universalize this standard either in regard to Holmes’s interpretation of someone else or someone else’s interpretation of Holmes.157. Carrington, “Hail! Langdell!” 693n14; Siegel, “John Chipman Gray,” 1516. John H. Schlegel likewise dismisses an analysis of Langdell’s teaching as though it had no bearing on his jurisprudence. Schlegel, “Langdell’s Auto-da-fé,” Law and History Review 17 (1999): 149–54.158. [Holmes,] “[Review of] A Selection of Cases on the Law of Contracts,” 234. See Langdell, Prefaces to Summary of Equity of Pleading (1877) and Summary of the Law on Contracts (1880); Ames, “Christopher Columbus Langdell, 1826–1906,” 479.159. Grey gives no indication that he is analyzing a textbook even when stating, “Langdell’s most common form of doctrinal discourse was simple dogmatic pronouncement and when he went beyond that, his more usual appeal was to authority or to ‘principle.’ (that is, doctrinal coherence).” Grey, “Langdell’s Orthodoxy,” 14.160. Grey, “Langdell’s Orthodoxy,” 3.161. Ibid., 13, 29.162. Ibid., 50 and see 49–50n178.163. Similarly, this circularity is seen in Grey’s discussion of the point that “classical orthodoxy sought objective tests,” a characteristic “illustrated” to varying degrees by Williston, Ames, and Langdell (ibid., 11n36). But these are precisely the exemplary figures who define “classical orthodoxy,” so they necessarily illustrate its characteristics. Commensurate with his formalism, Grey imputes circularity to Langdell’s treatment of cases as sources of common law principles (ibid., 24).164. Grey, “Langdell’s Orthodoxy,” 13, 14.165. Ibid., 14n50.166. Ibid., 27. Grey also discusses exceptions in Langdell’s “classical orthodoxy” that Langdell does not deem anomalous (ibid., 26–27). But Grey does not seem to provide for these exceptions in making his blanket assertion that acceptability—that is, considerations of justice or convenience—is never related by Langdell to bottom-level rules or decisions in specific cases (ibid., 15).167. See Langdell, “Notebooks of Lectures on Partnership and Commercial Paper [1870–71],” 2 vols. Bound Manuscript Collection, Harvard Law School Library; Langdell, “Untitled Lecture notes on Suretyship and Mortgages,” [Spring 1883], in Langdell, “Sampling of Manuscripts,” Harvard University Archives; “Manuscript Book of Lecture Notes taken by an unidentified student in suretyship class taught by C. C. Langdell in 1892–3,” Bound Manuscript Collection, Harvard Law School Library.168. Grey, “Langdell’s Orthodoxy,” 3–4, 11n35, 13, 14, 26n88, 46.169. Ibid., 14. The position concerns the question of whether unilateral contacts are revocable up to the time performance is completed.170. Ibid., 34n130, 35, 35nn131–32. These instances are drawn from articles in Harvard Law Review.171. Grey, “Langdell’s Orthodoxy,” 13–14.172. [Holmes], “[Review of] A Selection of Cases on the Law of Contracts,” 234; Grey, “Langdell’s Orthodoxy,” 4; Siegel, “John Chipman Gray,” 1524.173. Howard Schweber insightfully observes that most commentators fail to read Langdell’s entire discussion of the mailbox rule and, when that is done, it “looks a great deal like the derivation of a rule from the observation of practical consequences recorded in cases, precisely the idea of an inductive legal science—however constrained the range of his induction.” Howard Schweber, “Before Langdell,” 633. Schweber was specifically rebutting Grey’s reading of Langdell’s comment on the mailbox rule.174. Alschuler, Law without Values, 90.175. Quotations are from Siegel, “John Chipman Gray,” 1516.176. Bouvier, A Law Dictionary, s.v. alimony.177. Langdell, “Discovery under the Judicature Acts of 1873, 1875,” Harvard Law Review 11 (1897): 217.178.The People of the State of New York v. The Northern Railroad Company, 53 Barbour’s 98, 108 (1869); 1869 WL 6294 (N.Y.).179. “Manuscript Book of Lecture Notes taken by an unidentified student in suretyship class taught by C. C. Langdell in 1892–3,” Bound Manuscript Collection, Harvard Law School Library, p. 4.180. Boyer, “Book Review, Logic and Experience,” 362. Other reviews include: John A. Matzko in American Journal of Legal History 39 (1995): 271–72; William C. Chase in Journal of American History 81 (1995): 1752–53; Maxwell Bloomfield in American Historical Review 100 (1995): 571; Eric A. Chiappinelli in Western Legal History 9 (1996): 250–52.181. Apart from passing references, this material is found primarily in William P. LaPiana, Logic and Experience: The Origin of Modern American Legal Education (New York: Oxford University Press, 1994), 3–28, 55–78, and the associated notes. The book is founded in the dissertation: William P. LaPiana, “Logic and Experience: American Legal Thought and Legal Education, 1800–1920” (Ph.D. thesis, Harvard University, 1987).182. LaPiana, Logic and Experience, pp. vii, 78. LaPiana expresses appreciation for Langdell in an “Epilogue,” whose tone does not seem fully concordant with that in the body of the book. LaPiana, Logic and Experience, 168–70.183. Quotations are, respectively, from John H. Schlegel, [Book Review], Law and History Review 14 (1996): 369; Gordon, “The Case for (and against) Harvard,” 1231.184. LaPiana, Logic and Experience, 78.185. Ibid., 58–70.186. But LaPiana at one point confuses the second edition of the Summary of Equity Pleading (1883) with that of Summary of the Law of Contracts. LaPiana, Logic and Experience, 188n12.187. LaPiana ambitiously visited many archives gathering primary material for the rest of his study, not under consideration here.188. [Letters from 1907 and 1908 giving Reminiscences of Harvard Law School … ], Charles Warren Papers, box 37.189. LaPiana, Logic and Experience, 173n19. Langdell Papers, box 10. The second largest collection of Langdell letters, recently identified, also addresses Langell’s law practice: Eleazar Lord Papers, Special Collections, Harvard Law School Library.190. LaPiana, Logic and Experience, 191n79. City Bank of New Haven v. Perkins, 29 N.Y. 554 ([New York Court of Appeals] 1864).191. LaPiana, Logic and Experience, 71. LaPiana was quoting and endorsing the traditional judgment of Ames, though he dropped Ames’s key qualifier “often”: “‘Langdell did not often appear in court … ‘”(“Christopher Columbus Langdell, 1826–1906,” 473).192. LaPiana, Logic and Experience, 71. In an earlier article, LaPiana reached a similar conclusion without providing evidence that Langdell’s professional experience informed him about litigating cases. William P. LaPiana, “Just the Facts: The Field Code and the Case Method,” New York Law School Law Review 36 (1991): 325.193. Boyer, “Book Review, Logic and Experience,” 367.194. LaPiana, Logic and Experience, 74.195. The ancillary topics are addressed in W. Burlette Carter, “Reconstructing Langdell,” Georgia Law Review 32 (1997): 81–134.196. Ibid., 11, 8.197. Ibid., 51, 60.198. Quotations are from ibid., 40.199. Ibid., 2n2.200. Though Carter asserts that she is the first to examine these letters (ibid., 2n3), they were previously quoted, without attribution, by Ames (“Christopher Columbus Langdell, 1826–1906,” 473–74) as well as by Mark DeWolfe Howe, who left a note card in one of the boxes. Langdell Papers, box 11, f. 10–1.201.Delafield v. Parish (1857), identified by Ames, and City Bank of New Haven v. Perkins (1864), identified by LaPiana.202. Apart from the annual reports, she discusses one of his four casebooks, one of his three summaries of doctrine, one of his nine articles in the Harvard Law Review, and two of his three published writings about HLS. Langdell’s other publications are listed in passing. See Carter, “Reconstructing Langdell,” 86n298, 112n379.203. Quotations are from Carter, “Reconstructing Langdell,” 2, 23. See ibid., 4–11, 22n86, 25n96.204. Regarding the reasons for the perseverance of Holmes’s “polemical” view of Langdell, Mathias Reimann maintains that the view “gains its power through its simplistic and one-sided portrayal and thereby successfully discredits logic in the law. The distaste we acquire for logic is transferred easily, and in accordance with Holmes’s tactic, to Langdell as its American representative…. The distorted picture of Langdell is, however, not Holmes’s responsibility alone, nor due solely to our falling prey to the polemical character.” In addition, the acceptance of Holmes’s view is due to “our eagerness to view his relationship with Langdell incorrectly as an all-out conflict between a sophisticated early realist and a simple-minded formalist.” Reimann, “Holmes’s Common Law and German Legal Science,” 110.205. The decanal reports are found in the corresponding Annual Report of the President and Treasurer of Harvard College (Cambridge, Mass., 18–).206. Quotation is from E. Allan Farnsworth, “Contracts Scholarship in the Age of the Anthology,” University of Michigan Law Review 85 (1987): 1409n16. John W. Smith, A Selection of Leading Cases on Various Branches of the Law [1835] … with Additional Notes and References to American decisions by J. I. Clark Hare and Horace B. Wallace of the Philadelphia Bar (Philadelphia: John S. Littell, 1844), 2 vols. This was cited, for example, by I. W. Foltz, “Do we understand and rightly use the ‘case system’?” Chicago Legal News 39 (1906): 7; Schofield, “Christopher Columbus Langdell,” 281; A. W. B. Simpson, “The Rise and Fall of the Legal Treatise,” in Legal Theory and Legal History: Essays on the Common Law (London: Hambledon Press, 1987), 303; Carter, “Reconstructing Langdell,” 22n86.207. Smith, A Selection of Leading Cases, publisher’s advertisement, 1: vi; 2: 428–29, passim.208. Carrington, “Hail! Langdell!” 735–36; Emlin McClain “William Gardiner Hammond,” Great American Lawyers, ed. William D. Lewis (Philadelphia: John C. Winston, 1909), 8: 220–21.209. Dorsey D. Ellis, Jr., “Legal Education: A Perspective on the Last 130 Years of Legal Training,” Washington University Journal of Law and Policy 6 (2001): 166.210. William G. Hammond, “Legal Education and the Study of Jurisprudence in the West and North-west,” Journal of Social Science 8 (1876): 177–76.211. Quotations are from John Norton Pomeroy, Jr., “John Norton Pomeroy,” in Great American Lawyers, ed. William D. Lewis (Philadelphia: John C. Winston, 1909), 8: 99.212. Phillip C. Jessup, Elihu Root (New York: Dodd Mead, 1938), 1: 61; Hurst, The Growth of American Law, 261ff.; Chase, “The Birth of the Modern Law School,” 333n18; Speziale, “Langdell’s Concept of Law as Science,” 12n40; Friedman, A History of American Law, 613n20; Stevens, Law School, 66n14; Farnsworth, “Contracts Scholarship in the Age of the Anthology,” 1409n16; Carrington, “Hail! Langdell!” 736; Carter, “Reconstructing Langdell,” 22.213. Additional evidence for thinking that Pomeroy was a pioneer of case method is found in his 1878 program for the new Hastings Law School, in which he says he will discuss “leading cases” in class with students. See John Norton Pomeroy, The Hastings Law Department of the University of California (San Francisco: A. L. Bancroft, 1878), 17–18. But even here, Pomeroy, like Hammond, presents the cases as “illustrative” of legal doctrine previously communicated to students by means of a syllabus or lecture (Pomeroy, Jr., “John Norton Pomeroy,” 99). This approach, whether adopted in the late 1860s or 1878, differs significantly from Langdell’s inductive case method. Pomeroy’s syllabi and texts confirm that he presented cases for students to examine and discuss after he had lectured on the doctrine. See [John N. Pomeroy], Unpublished volume of pamphlets entitled “Announcement of Course of Instruction for Academic Year 1884/85 and Syllabuses of Lectures” (San Francisco: Hastings College of the Law, University of California, c.1880–c.1884); John Norton Pomeroy, A Treatise on Equity Jurisprudence as Administered in the United States of America: Students’ Edition (San Francisco: Bancroft-Whitney, 1907); John Norton Pomeroy, An Introduction to Municipal Law: designed for general readers and for students in colleges and higher schools, 2d ed. (San Francisco: Bancroft-Whitney, 1886); John Norton Pomeroy, An Introduction to the Constitution (New York: Hurd and Hough, 1868).214. “Notes,” Harvard Law Review 4 (1890): 395.215. John N. Pomeroy, Jr., “[Review of] Josef Redlich, The Case Method in American Law Schools,”Educational Administration and Supervision 2 (1916): 44–46. A comparison of Pomeroy’s teaching and Langdell’s teaching is made in Thomas G. Barnes, Hastings College of the Law (San Francisco: University of California Hastings College of Law, 1978), 110–14, where the understanding of Langdell is shaped largely by that of the Centennial History and Grant Gilmore and, therefore, adopts the revisionist view of Langdell and credits Pomeroy, although Pomeroy’s systematizing and Langdell’s disaggregating approaches to studying cases are distinguished. | |
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