JOHN GOLDBERG: Thank
you all for coming. My name is John Goldberg. I’m a faculty member
here at the Law School, as is my colleague, Henry
Smith here, the co-organizers, or hosts of this event. I’m going to briefly
introduce our panelists. And then give you a few
basic facts about Langdell, and then turn it over for our
panelists to make some remarks. Then we’ll open it
up for questions. In order of presentation
but not esteem, our first speaker after myself
will be Professor Catharine Wells, who is Professor of Law
and Law School Fund Research Scholar at Boston College
Law School, where she writes in pragmatic legal theory,
feminist jurisprudence, and civil rights theory. She has previously served as
Associate Dean for Academic Affairs, condolences. [LAUGHTER] She’s also been the Chair of
the Association of American Law Schools Section on Torts
and Compensation Systems and the Section on
Teaching Methods. And she is in the process of
publishing a book about Oliver Wendell Holmes, Jr. and
the pragmatic tradition in American law. Our next presenter
will be Brian Leiter. Brian Leiter is the Karl
N. Llewellyn Professor of Jurisprudence and
Director for the Center of Law, Philosophy, and Human
Values at the University of Chicago Law School. He joined the Chicago
faculty in 2008. In 2009, he founded the Center. Previously he taught for
13 years at the University of Texas at Austin. His teaching and
research interests are in moral, political,
and legal philosophy, and the law of evidence. He’s the author
of numerous books on jurisprudence and
moral philosophy, and was an editor of the
journal Legal Theory, and a founding editor of the
Routledge Philosphers book series and of Oxford Studies
in the Philosophy of Law. Last but not least,
at the far end, is Professor Anthony Sebok. He is Professor of Law at
Benjamin Cardozo Law School. Professor Sebok is an expert
on mass torts, litigation, financial comparative court
law, and legal philosophy. Before joining the
Cardozo faculty in 2007, he was the Centennial Professor
of Law and Associate Dean for Research, condolences,
at Brooklyn Law School, where he taught for 15 years. He was also a Fellow in the
Program in Law and Public Affairs at Princeton
University from 2005 to 2006. And in 1999, he was a Fellow at
the American Academy in Berlin. He has authored
numerous articles on litigation finance, mass
restitution litigation, slavery reparations. And he’s the author
of Legal Positivism in American Jurisprudence. So, as you can see, we have a
very distinguished panel here to discuss Langdell. I’m here just to introduce
the man, and, if you will, set in a very minimal way
the historical context. So here is the man, Langdell,
one of his favorite portraits from 1870 or so. You can see he
lived for the better part of the 19th century. He came from very
meager backgrounds. He was the son of a farmer
who struggled economically and managed, through the
generosity of others, to get a scholarship,
if you will, to Harvard and
Harvard Law School. Where he was a, quote unquote,
“pauper” scholar and thus didn’t fit in with a lot of
the more well-to-do students he was hanging around with. After law school, he practiced
in New York for a full 15 years and had quite a successful
commercial practice as it would have been back then. He was then hired by the
famous university president, Charles Eliot, to be a faculty
member of the Harvard Law School. And Eliot who had met Langdell
years earlier at Harvard, brought him in specifically to
be a change agent at Harvard. As soon as he got to Harvard,
Langdell was appointed Dean. Now, that sounds
pretty remarkable, but you have to remember
that in 1870 what it meant to be Dean was to,
basically, be the secretary, to take minutes at faculty
meetings and not do much else. But Langdell had
a grander vision, and he actually
turned the Deanship into a seat of reform
and renovation. And he was quite controversial
among his colleagues for this. He was determined to
hire scholars, as opposed to the tradition of hiring
practitioners to teach. He wanted to hire
researchers and writers. So people like me
owe him our jobs, the people who spend their time
reading and writing and not practicing. That whole idea
of a law professor was very much Langdell’s. He realized that
if you were going to be a great law
school that was going to last for 200 years
or more, you had to have a fantastic library. And he devoted resources
to creating what is now namely the Langdell Library. He raised admissions standards
and academic standards. When he started at
Harvard Law School, the way you made it through Law
School was you took classes, and then your professors
blessed you or didn’t. There were no exams. It was just did they think
you were smart or not. And Langdell said,
maybe we should have some exams to see if
anyone actually knows anything. [LAUGHTER] So, in fact, quite an innovator. Of course, he was most
famously associated with pedagogic innovation,
known as the case method, which we’ll talk about,
I imagine, some today. I won’t belabor it except to
say that, of course, the case method, which he started
at Harvard, teaching law students through the
presentation of a sequence of cases, has sort of dominated
legal education in the United States since he introduced it. And he really was
the first person to produce a casebook,
a modern-style casebook, The Law of Contracts. By the way, for you students,
no notes, just cases. No expository text, no
guidance, just cases. OK, so to give you a sense of
what Harvard Law School was like in the Langdell era– well, I don’t know if you
can read it very well up there on the
screen, but this was this sort of annual publication
of the Harvard University Law School. First page, 1870-1871,
you see there’s– what– six faculty members. And then you’ll see
the required studies– personal property, real
property, contracts, torts, criminal law and procedure,
civil procedure, evidence. Not shockingly different, right? And a source of
criticism of law schools today that the first
year curriculum and the required curriculum
don’t look shockingly different today in 2017 than they did. Well, we can talk
about that, too. This is what a classroom
looked like in about 1870, nothing very fancy. You’re all doing better
today than they were in 1870. So, of course, the
reason we’re here, or one of the
reasons we’re here, is because Langdell is famously
associated with something called legal formalism. A lot of what we’re
going to talk about today is what does this
mean, and what does it mean to be a formalist, to be
against formalism, et cetera. But the great antagonist
here is, of course, is another even more prominent
Harvard Law graduate, Oliver Wendell Holmes, Jr., who
in a book review, reviewing the second edition of Langdell’s
casebook on contracts, offered the following
assessment of the book and the sort of philosophy
behind the book, if you will. And I’ll quote, “Mr.
Langdell’s ideal in the law, at the end
of all his striving, is the elegantia juris,
or logical integrity, of the system as a system. He is, perhaps, the greatest,
living legal theologian.” Now, coming from Holmes,
them’s fighting words. And so he rendered
this criticism. And ever since, basically,
people have used Langdell, or some people have used
Langdell, as a kind of punching bag, intellectually speaking. And so we’re going to talk about
why they do that, whether it makes sense, and so forth. That’s just setting the stage. I’m now going to hand things
over to Professor Wells. CATHARINE WELLS: Hi. My thanks to John and
Henry for organizing this. It’s really a
pleasure to be a part of Harvard’s 200th anniversary,
or the Law School’s 200th anniversary. And I’m especially pleased to
be talking about Langdell, who, by his teaching and by
his leadership as a dean, not only influenced
Harvard but all education actually for a century to come. So that’s a very big legacy. But I’m not going to talk
about the big legacy today. I’m going to talk about his
career as a jurisprudent. Somebody who tells
us about how law ought to be formed and decided. And in that connection,
he’s become a straw man. Is probably the biggest
straw man in American law. Because he does,
as John said, stand for formalism and for a
particular kind of formalism. This is sort of
the essence of what people attribute to Langdell. The notion that
lies disconnected from the real world. Unlike the realists,
he doesn’t think that we need to take
properly into account that employs a deductive method. And he means, in particular,
a syllogism, or what logicians call modus ponens. And then, of course,
there’s the assertion that every legal case has one
and only one right answer. So that’s what
Langdell’s formalism is supposed to look like. I want to say a little word
here about modus ponens, which is if you go to a
modern logician, they won’t talk
about the syllogism. They’ll talk about the
rule of modus ponens, which is the familiar one. And you can see,
chocolate is a dessert. I love dessert. Therefore, I love chocolate. What gets us from one to
two to three, it’s the rule, modus ponens. Well, so, whoops. Anybody who has read
a lot legal cases, and I’m betting that
most of you have, will find the idea that law
is deductive logic somewhat implausible, I suspect. But what’s
interesting, of course, is that logicians find
that implausible as well. So I thought I’d talk
about that today, because we have, I think,
beaten Langdell as the formalist to a pulp. It’s time to look at him from
a different point of view. So I have a particular
logician in mind, and his name is Lewis Carroll. I suspect you’ve
all heard of him. He saw in logical reasoning and
in modus ponens a difficulty that no one had
ever seen before. And so what I want to
do is explain to you Carroll’s Paradox and why
it’s relevant to putting the nail in Langdell’s
coffin as a jurisprudent. So it begins with a story. And the story is this. The tortoise walks
up to Achilles, and he takes three
propositions from Euclid. Two are premises, and the
third is the conclusion. And they are, in fact,
related by modus ponens. So he says, well, I
believe one and two. But I’m not sure
about this conclusion. I’m really going to
need some persuading to get to the conclusion. So Achilles is happy to help. Sorry. I’m technologically challenged. Oh, I see. Yeah, that’s fine, OK. So he’s happy to help. And he begins with
the two propositions from Euclid, one and two of the
basic premises of modus ponens. And then he says, well,
if one and two are true, then the conclusion
must be true. So he asserts modus ponens. And then he turns to the turtle,
and he says, now, you see, if you believe
these three things, then you have to
believe the third. But the tortoise
isn’t satisfied. Not enough. I’m afraid I’m going to
need one more premise. There we are. Sorry, I have never used
one of these before. I’m afraid I’m going to
need one more premise– [LAUGHTER] This is cheating. This is cheating–
no, no, I’ll use this. All right, yeah. So the tortoise is
still not satisfied. He says, you know,
I get one and two, and I get three, which is
that if one and two are true, the the conclusion must be true. And I get four. If one, two, and three are
true, then the conclusion must be true. But I still need
something that tells me that if these four things are
true, there is a conclusion. So Achilles says, OK, at
last we’ve gotten to the end. I’m going to add this fifth one. And we’ll put it on
the list, and then you can accept the conclusion. Do I, said the
tortoise innocently. Let’s make that quite clear. I accept A, B, C,
and D. But suppose I still refuse to accept
C, which is the conclusion. Now that you’ve accepted
one, two, three, and four, Achilles replies, you must
accept the conclusion. You have no choice, you see. Logic would take you by the
throat and force you to do it, achilles triumphantly replied. Whatever logic is good enough
to tell me, the tortoise said, is worth writing down. Well, in your bluebook,
please, we will call it five. If one, two, three,
and four are true, then the conclusion
must be true. Until I grant that, of course,
I needn’t grant the conclusion. So it’s quite a
necessary step, you see. I see, said Achilles,
and there was a touch of sadness in his tone. Well, the problem
here, of course, is that there’s an
infinite regress. It should remind you a little
bit of Zeno’s Paradox, where you keep getting half way there
but not all the way there. You’ll have to keep
adding a premise. And you never get
to the conclusion. And why is that? So what it does not teach
us about legal reasoning is that the tortoise is
simply refusing to be logical. Again, we’re not just dealing
with somebody to whom you say, well, this, this,
and this is true. So therefore, I’m
still not going to believe this in some
kind of rule-breaking way. Instead, the tortoise is making
a deeper claim about what it means to be logical. To make a logical
argument– and this is very relevant to Langdell. If you’re going to make
a logical argument, you can’t just have
propositions and premises. You have to have
something called the rule. Because it’s the rule that
licenses the inference. The propositions and the
rule are not the same thing. Once we write down the
rule, once we treat them as a declarative
sentence, they lose their compulsory character. They become simple
propositions that describe something rather
than the performative words that the rule is they
regulate conduct. So that’s the problem. We have this
fundamental difference between rules and propositions. So what does this tell
us about Langdell? To say that somebody
must do something is to say that there’s
a rule that requires it. Understanding a
rule is to know what it requires in a diverse
range of situations. But no rule can be fully stated. Every rule has exceptions. For example, no
coffee at 7:00 may mean different things
during daylight savings, or on holidays, or when
the servants get a day off, or when the coffee
machine is broken. Rules are not
declarative sentences. If they were
declarative sentences, we’d never be able to
draw any conclusions. I know how to fix this. Back to Langdell. So Langdell invented
contract doctrine. That was a sizable achievement. He developed an analysis
of contract probation that was far more
complicated than anything that had gone before. And from this analysis
of contract probation, he was able to see a lot
of logical relationships between the requirements
of formation and what you would do under
certain circumstances. He invented a rich
theory of contract which provided for a sort of
uniform theory of the cases, how you would look at the cases. At least that’s what
he thought he did. So he did part of that. He enriched the way we
talked about contract law by creating an analytical
construct that we now call contract doctrine. He was so good at it that 100
years later it’s still being taught in contracts cases. He noted the logical
relationships between the doctorate
and the cases that helps students learn. His framework was, in fact,
very useful for a lot of things, organizing treatises so lawyers
could find relevant cases, organizing briefs,
teaching contracts without requiring
students to memorize large numbers of cases. Students have benefited from
that for a hundred years. These are useful things. But what he did not do,
what he could not do, is the thing
everybody attributes to him, which is to demonstrate
that law is simply logic, that judges must decide
cases based on syllogism. As the tortoise showed us, no
amount of contract doctrine can force a judge to
make a certain decision. It cannot even prove what
decision would be logical. JOHN GOLDBERG: Thanks very much. [APPLAUSE] We’re next going to
hear from Brian Leiter. BRIAN LEITER: Thanks, John. When Langdell developed the
case method of new instruction– I want to say a little more
about the case method, though. Some of this was
already suggested by Professor Wells’ remarks. The idea of the case
method for Langdell was that by studying the cases,
the decisions of the courts, you could engage in
a kind of inference to the best explanation
about the general legal rule or principle that explained
the particular decision. And you do that enough,
you could eventually put the whole area
of law together, in terms of the basic doctrines
and then the points that are derivable from basic doctrines. Now, this was a complete
change from the way law was taught at Harvard
before Langdell. Before Langdell, it
was largely a matter of recitation and repetition
of things in old books. So this was a very
dramatic break. Now, why did Langdell
introduce this method? In the 19th century– the 19th century saw
the birth of what we know as the modern research
university, of which Harvard is, of course, an important
American paradigm. But the research
university in America was formed on the basis
of the German model. And here we owe the conception
of the research university to Wilhelm von
Humboldt, who was very influential in establishing
the modern German university system. And Humboldt’s
idea was that what distinguishes a university
from a trade school, or some other institution
that teaches skills, is that universities
are homes to disciplines that are Wissenschaft. Wissenschaft is the
German word for science. Now, unfortunately
science in English has the connotation
of natural science, and that’s completely
wrong in this context. A Wissenschaft refers
to any discipline where there are
teachable methods for investigating,
discovering the truth about some aspect of the world. So Classics was a Wissenschaft. History was a Wissenschaft. Anything that belonged
to the university had to be a
Wissenschaft, that is, it had to involve clear methods
for discovering the truth about a subject matter. And this vision of
what a university is in the background of what
Langdell was trying to do. Langdell was trying to
show that the study of law was, indeed, a science. And it was a science
that involved a method. As he famously
said, “the casebook is the laboratory of the
lawyer and the legal scholar.” We study the cases. We draw inferences about
what general doctrines seem to explain them. We try to reconcile
apparently different decisions to finally elucidate the general
structure of the legal doctrine in some area. And so Langdell’s
great contribution was to show that the study of
law belonged in a university, because it was actually
a Wissenschaft. Now, what about the famous legal
realist reaction to Langdell? John Goldberg gave us one
of Holmes’ choice remarks about Langdell. Starting in the 1920s
and 30s, many other of the American legal realists,
Karl Llewellyn, Jerome Frank, Herman Oliphant, and many
others began launching an attack on Langdell’s formalism,
often in conjunction with an attack on Joseph
Beale, another Harvard Law professor, his
formalism, as applied in the conflict of laws. Now, the important thing to
understand about legal realism, and I think legal
realism has suffered from a great deal of caricature
over the years, partly at the hands of the
critical legal studies professors at this law school. An important thing to
understand about legal realism was they shared Langdell’s
ambition that the study of law be scientific. They didn’t have any
disagreement with Langdell about that. What they disagreed with was
the quality of the science that Langdell was doing. Their objection, in essence,
boiled down to this. They said, Langdell’s
mistake was to read the cases of the courts
and take far too seriously the very general statements
of legal doctrine that the courts invoked as an
explanation of their decisions. And the realists said, actually,
the very general statements of doctrine tend to be
misleading about the actual basis for the decision. And let me give you a very
simple but famous example from the realist
canon, due to Herman Oliphant, who was a law
professor at Columbia for many years. Oliphant said, in a famous
lecture in the 1920s, he said, look, there
are two lines of cases about promises not to compete. And in some cases, the
courts uphold the promises, and in other cases, the courts
do not enforce the promises. They find them to be invalid. And Oliphant says, if
you try to reconstruct the divergent lines of
the decision in terms of general doctrines
of contract law, or a failure of the
meeting of the minds, was there some other
kind of mistake that vitiated the
contract and so on? He says, you can’t make sense
of what’s going on in the cases. To understand the
cases, and now this was the realist innovation
in legal science, said, you have to look very
carefully at the underlying facts of the case. And in particular,
you have to see that cases fall into
patterns of decision that are organized around
what realists typically call situation types. Types of factual
situations that recur and to which the courts
have similar responses. So in the case of promise not
to compete cases, Oliphant says, in order to understand
what was really going on, you need to notice
that in all the cases where the court enforced
the promise not to compete, it was a promise by a seller
of a business to the buyer not to simply set up shop
next door and compete. And Oliphant says,
of course, the courts enforce those promises, because
otherwise the transaction would have been economically
pointless, right? What’s the point of
buying a restaurant that the former proprietor just
opens up across the street? So any other decision wouldn’t
have made good economic sense. By contrast, says
Oliphant, all the cases where the courts do not enforce
a promise involve promises by employees not to compete
with their employers after leaving the employment. So we have– sorry. In this case,
Oliphant says, what’s really going on is that such
promises were disfavored by, as he puts it, in the language
of the time, guild regulations. Trade guilds strongly disfavored
binding employees this way. This wasn’t a legally
codified norm, but it was one to which
the courts were sensitive and thought was basically fair. That is, it was unfair to
bind the apprentice baker to the baker for
the rest of his life even if he stopped working
for that particular baker. So to understand the cases,
to read them really carefully, you have to identify
situation types, and then see what kind of
normative considerations are leading the courts to
treat these situation types one way rather than another. Now, notice that this
way of looking at cases isn’t really inconsistent
with Langdell’s ambition. And indeed, The Second
Restatement of Contract actually incorporates
something like, not exactly, Oliphant’s distinction between
different kinds of promises to compete. And in that sense,
the realist ambition was really a fulfilment of
what Langdell was trying to do. They just thought they
were doing it better. They were being better
scientists of the law. And in a nutshell, we
can say the goal was to state the rules governing
the decision of the cases at a greater level of
factual specificity such that we identify a
type of factual situation that courts thing
has a normatively significant feature. And once you codify that,
to the extent you can, you have something
that looks very much like the original
ambition of what Langdell was trying to do. So I think there’s
actually a deeper continuity between Langdell’s
ambition and the realists’ revolution. Though the one we
do owe the realists is the fact, as John mentioned,
right, Langdell was just cases. And the realists gave us cases
and materials on the law. Because part of their
hypothesis– and now this is related to what
Professor Wells said. Part of their hypothesis
was to understand what types of situations
the courts took to be normatively
significant, you have to understand things
about the social, historical, economic, and political context. And that was the point
of the materials, right. You had to know, for example,
that there were trade guild regulations that strongly
disfavored binding employees to employers in perpetuity. And I think that’s a
good place to stop. Thank you. [APPLAUSE] JOHN GOLDBERG: Thanks
very much, Brian. And now we’ll hear
from Professor Sebok. ANTHONY SEBOK: OK, well,
thank you very much. I want to thank Henry
for inviting me. I’m very pleased to be on a
panel with Catharine and Brian, who are wonderful, old
friends and colleagues. I’m going to talk a little bit
about why Langdell isn’t scary, like others here, and then
I’m going to say something about Langdell, which will
make him sound really scary and make you dislike
the Langdell I present and, perhaps, dislike me. So there are a number
of myths about Langdell that have been
already mentioned. I’ll mention them again. The chief one to my
mind are that he thought that law was like geometry. You can blame that on some
of the realists, especially Grant Gilmore. Gilmore mocked
Langdell for imagining that he could reduce
legal principles to a very small number, and that
he could represent these legal principles in a
very small number of cases. There’s another
myth that Langdell thought that the common
law was ahistorical. It was actually a set of
ideals that were not rooted in any historical experience. You can blame this
on Felix Cohen, who used this expression,
“transcendental nonsense,” to describe Langdell’s work. You could also blame it on
Holmes, who talked about him as a “legal theologian.” Oh, by the way, the other
great quote from Holmes is that he was a representative
of “powers of darkness.” And the other myth is that
Langdell thought that legal art was logical only and deductive. Now, the reality is that to
the extent that Langdell was interested in science, to
whether his expanded expression that Brian uses, or the more
narrow sense that we used in the Anglo-Saxon vocabulary,
he certainly was much more of a mind that it was
like biology or geology, which actually in the
19th century were the sort of state-of-the-art, high-tech,
computer-like new technologies of the moment,
Darwin, et cetera. Also, he never
expressed an opinion about the metaphysical
status of law. He was, in fact, a little
bit allergic to philosophy. He never suggested
that he thought law was not
historically contingent, and that it would
not vary, in fact, by the culture and nation. In fact, he observed
a system of contract, like the one in civilian systems
that did not use consideration, could be perfectly operable. It just wasn’t the
common law system. So you can imagine other nations
having different premises than the nations– sorry, than the premises
that were in the common law that he was analyzing. So there’s absolutely
nothing to suggest that he was a transcendentalist. And finally, and
most importantly, famously, both in
his academic writing and also in his
pedagogical method, was not motivated
primarily by deduction. He was motivated by induction. He started off with
2,000 contract cases. He sifted through them. He drew the ones
out that he thought were representative of
the deeper principles that were contained in the many. This is why he
compared his method to a laboratory of
samples in botany, not to the cloistered
office of the logician who was working with paper and
pen, working on angles. He really thought
that the knowledge that can be gained from law
can be done inductively. That’s the sort of
sense of reality I want to emphasize
about Langdell. But I also don’t want to
ignore that there was something about Langdell which really
justifiably annoyed people for the last hundred years. He did sound like a
little bit of an idiot when he said, for
example, of the mailbox rule, the famous rule that
said that contract was only complete when the
acceptance was received, not when the
acceptance was mailed. And he said, this is a quote. He said, although the new
rule that people are pushing, this radical new rule that
the will theory would suggest, that you have
contracts are completed when the acceptance is submitted
and in the mailbox, not when it’s received. He said, “although he
could see that would serve substantial justice, the
true answer to this argument is that it’s irrelevant.” Substantial justice is
irrelevant to the analysis of whether or not a rule
of law presented to a court was correct or not. Now, for Holmes, this meant that
Langdell rejected experience. I want to stress,
Holmes himself is not that much interested in the
forces of substantial justice either. Holmes was interested in
the force of experience. And for the realists,
many of them, I think, the rejection of
substantial justice was tactically and
philosophically very worrisome, because they saw this as
reinforcing and entrenching social interests, conservative
social interests, which they would have liked to have
seen subject to revision by the courts. So we have this
paradox in Langdell. We have a paradox where his
legal theory is understood by us today incorrectly to
be one based on deduction and anti-empiricism. And then we have this other
story, celebrated by people here, a whole building
in this law school, of his pedagogical approach. His pedagogical approach is
represented, everyone agrees, by emphasis on induction, the
case quote, and empiricism. If you look at not just the
case method in the classroom, but also why did he introduce
the exams that he introduced. Before he introduced the exams
which were problem-based, exams, if they existed at all,
were based on memorization of simple rules and texts. He wanted to have students
prove that they could take basic facts and analyze them,
in much the same way we still have the exam today for the
first year of class, of a fact pattern. And finally, he was the one who
wanted interactive classrooms. He wanted to have professors
talking to students, calling them. And he was the first to admit
that legal interpretation was always provisional. The famous line is that
someone said in the classroom, he observed that over the
course of two weeks of classes, he changed his mind three
times about whether a case was properly decided. He saw nothing
strange about this. Celebrated as the great,
sort of, inductive reasoner. Celebrated as the great active
participant in the inquiry of law as a living thing. So we see these two
parts of Langdell. One thing that I’m
very interested in is why did he seem so
committed to what I think is the truer side of himself,
this inductive, empirical side. Why did he seem so committed
to this in real education? And there’s a line which
Professor Goldberg tipped me off to, which I think
is very intriguing. It’s a line from a book about
the history of Harvard Law School, where the
author is saying that based on Langdell’s
15 years of practice in New York– and
this is a quote. He could not, this is
the author’s opinion, but I think it might be based
on very good foundations. “He could not teach that
judges decided cases based on their own sense
of fairness and policy.” “That–” this is the key phrase. “That was the road
back to Tammany Hall,” cases decided on whim. Now, there’s something
very striking about that. Because there is an
equation in Langdell’s mind between deciding a case on
fairness and whim, right? So Langdell felt
compelled, if it was going to help
him improve the law, to bring lawyers
and judges, those who would be deciding cases
and arguing cases, away from any temptation to
base law on human passion or human desire, and human
judgement about justice and to base it on something
objective and scientific. So he saw no conflict
between this caricature we have of him as
the legal scientist and this truth that we have
of him as a legal educator, based on him trying to promote
a growing understanding of law as a series of propositions
to be defended by argument. So that is why he
desperately wanted to promote through education
a certain conception of legal science. Now, the part that I want
to pivot to for a moment is to sort of observe
the following. If that’s all we
have of Langdell, and if that’s all we had
of law, what we could see is a growing evolution of
expertise in the analysis of law as a legal science. We could have, hopefully,
a greater sort of precision in our judgements about
what are the right and wrong propositions of
contract law, what are the right and wrong
propositions of property and tort law. But we don’t really have that. What we have is a rich
and full acceptance of the pedagogical
methods of Langdell, and then we have a stroke in
American law of something else. What we have in American
law between 1870 and 1930 are two things. One is the growth of Langdellian
method in the law schools, and the other is
a stalled effort to professionalize
the legal profession, to professionalize law. Here’s some interesting
statistics just to remember. In the 1870s, law was not
a regulated profession. As of 1927, no state
required law school education for the practice of law. 80% of lawyers– this is 1927– had no formal education. They had apprenticed,
like Lincoln, right. Now, a lot changed in the 1930s. And by 1941, 41 states
had required graduation from an ABA-accredited
law school. And throughout the 1930s,
there was this rapid effort by the ABA to pass
legislation that would prohibit the
corporate facts of law, the involvement of
non-lawyers in legal practice, and to invite the
courts to declare certain activities as the
unauthorized practice of law. Now, what am I
interested in here? I’m interested in the following. Langdell’s
educational philosophy succeeded fully in
the United States between, say, 1870 and 1930. What did not happen
though was law was then broken
off as a separate, self-regulating profession. I want to make the following
concluding observation. It’s an invitation. I could say some more
provocative things, but maybe my time
is growing short. The thing I want to
stress is the following. Now, I teach legal ethics. I write about the
legal profession. And I fully
appreciate, especially in an audience like this,
all of the important values that come from having
law be a profession and having it as a
profession regulated by those who are able to
monitor and control the quality and the integrity of lawyers. So let’s begin with the premise
that there’s no question here that we need to have
professional self-regulation. However, we should
not forget that there are always costs to regulating
an activity as a profession. The gains I think
I’ve already alluded to– consumer protection
and the bettering of society by having the right
kind of values held by those in
critical places to change the direction of social change. However, the costs are also
that, literally, you make law less available to people. When you create the monopoly,
you raise the price. And furthermore, when you
create the monopoly and raise the price, you take out of the
hands of some people who cannot or do not want to become
part of the profession, or who may not be able to
satisfy all those professional skills, the opportunity
to provide services that they could do perfectly well. Now, what’s interesting to me,
that during the 1920s and 30s, when the assault on the
corporate practice of law, when the assault on the
unauthorized practice of law was led by lawyers,
the main argument was not consumer protection. By that point, we
had enough experience seeing people who were not
licensed as lawyers providing the opportunity to
write wills for people, providing the opportunity to
help people write contracts– enough experience that
it could be identified by legislative committees
that there was not any obvious problem with
consumers being poorly served by these non-licensed actors. The argument that won the day
was the argument that there’s something called
professional judgment, something related
to the core values of the profession, which these
non-lawyers did not possess. And that led, of course, to
the restriction of individuals to practice law
only as individuals licensed by their bar or by
the court or to partnerships. For example, the key argument
why corporations could not practice law or why a non-lawyer
could not invest in a lawyer was that they would invade the
core values of legal practice. They would, in fact, infect
the judgment of the lawyer with their non-lawyerly,
commercial attitudes. And you see this throughout
the 1920s and ’30s. You see the argument
that commercial values are different from those
of lawyerly values. And that won the day. So the final point
I want to make is the following observation. There’s no obvious
entailment between perfection in legal science and
professionalization. You could actually
have universities teaching legal science. You could have people who are
excellent at analyzing rules– however we understand legal
science to be defined– without having them
licensed as professionals. So, for example, the state
could say, as we often deal with science today,
there is a separate discipline of botany or biology,
but with no need to say that if you
want to talk to someone or ask someone about whether or
not a claim is true in botany or biology, you can only go to
someone who has been identified and regulated by a
self-governing group of botanists and biologists. In that sense,
Langdell’s argument that we should expand
and perfect legal science is completely separate
from the argument that we should have a
legal profession that is defined by more than
technical capacity, but one that is defined also by
a certain normative identity. And my conclusion
will be the following. It’s not hard to
see why that would be appealing to the realists. Because after all,
the realists were trying to argue that being
a lawyer in judgement, in law, was more, in my opinion,
than perfecting certain claims about legal science
and attitudes about legal propositions. It was, in fact,
being able to add a certain capacity
of normative judgment necessary to the legal judgment. That was exactly what was
missing from Langdell. He said it wasn’t important. If you believe, if
you really believe, that lawyers, in their finest
and most excellent form, are not just
scientifically competent but also possess a certain
kind of normative capacity, then you are challenged with
the process of identifying those normative values. And this is exactly
what the Bar did. The Bar declared for itself
to be arbiter of something all of the normative
structure, the core values of legal reasoning, which made
wonderful sounding platitudes attached to them. But they do serve a
very specific purpose. They exclude anyone
who has not been deemed to possess
those qualities from the practice of law. I’m going to end
there, because I think I’ve probably said enough. Thank you so much. [APPLAUSE] JOHN GOLDBERG: It’s
interesting already some disagreements that might
be lurking at this table. But before we get
to that, I was going to ask my colleague,
Henry Smith, to offer a few
observations and responses. Then we’ll open it
up for questions. HENRY SMITH: So I
don’t want to get in the way of a disagreement. So I’ll just say a
couple of things. I want to add to the notion
of Langdell’s Paradox. Many times when you
identify a paradox, the way to look at it or
the potential solution, is to ask whether there’s
some hidden domain, some restrictive domain
over which you’re talking, or maybe you’re talking
over multiple domains at the same time. The one I’d like
to add to the mix here is the old law
versus equity distinction. So Langdell worked
in the era when the fusion of law and
equity was already under way and was proceeding in
various jurisdictions. It seems to me, and I’ll give
a few quotes in a minute, that some of the
image of Langdell comes from looking at his
statements about the law and not underplaying
or leaving out his statements about equity. So there used to be
separate courts of equity. They had a different
style of reasoning and so forth, and they
sometimes overrode the law. Now, one very interesting
thing about Langdell was that he was, if anything,
equally famous for his equity course at the Law School. As I recall, his equity
course was more popular than his contracts course. He also wrote extensively
on equity as well. He took a very
conventional, sort of Aristotelian-inspired
view of equity. Like Ames, he thought that
equity was an important part of the overall system. But it was a separate system. It was a subsystem of
the law, but put together with the law it furnished
the entire legal system. So he says, “the object of
equity in assuming jurisdiction over legal rights is
to promote justice by supplying the effects
and the remedies which the courts of law afford. The jurisdiction is co-existent,
extensive with its object. That is, equity assumes
jurisdiction over legal rights so far and so far
only as justice can thereby be promoted.” Now, some people, especially
in the critical legal studies world, have said, well, that’s
just a matter of remedies. And remedies is a
peripheral subject and one that we don’t even
teach much anymore. So first of all, I think we
probably should teach it more. But when Langdell
talked about remedies, he was not talking about
the current remedies course or remedies at
the time as a field. He was talking about
something much broader. So here’s another quote. “Of course, however,
it must not be supposed that equity
in modern times is simply a different system
of remedies from those administered in courts of law. For there are many extensive
doctrines in equity and some whole
branches of law which are unknown to the
common law courts. It may be said
without impropriety that equity is a great legal
system which has grown up side by side with the
common law and which, while consistent
with the latter, is in great measure
independent of it.” Now, when we’re talking
about the role of equity– I mean, he was talking
about whole areas of law, like trusts. He was also talking about what
we would call unconscionability and things like that. Now, when courts
were doing that, they certainly were
doing something that sounds a lot more
realistic and a lot less formless than the image
that Christopher Columbus Langdell usually affords us. So, for instance,
he would say things like, “questions of
jurisdiction do not receive the same careful
and constant attention which is bestowed on questions
of substance and right. And therefore, in dealing
with such questions, the elements of paced accident,
caprice, the habits of lawyers, the leanings of
individual judges, and the ever-changing
temper of public opinion have been factors of no
inconsiderable importance.” So when you add that
back into the mix into the overall system,
it doesn’t seem to me that the picture of Langdell
as some kind of legal idealist with deduction on the
brain all the time is really entirely accurate
or even close to the mark. Now, that’s not to
say that Langdell didn’t say all the things
that people say he said. But clearly there’s
more going on here. Now it seems to me that
basically the problem is that the legal
system in his day was undergoing a big change from
a hybrid system in which courts or jurisdictions within a
single court specialized. One aimed at general statements
and was more formalistic, and the other was much
more particularized and let all sorts of contexts in in a
way that equity courts didn’t. That kind of specialization
was hard to maintain. It was not going to be
reinforced by the courts anymore. And it was a
question– it still is a question– of how much
those two approaches have to be fused with each other. It seems to me that you have,
basically, two or three ways to go. One is to say, well,
yes, we fuse the courts, but we’re still going to engage
in this Amesian, Langdellian specialization. Which means that we have
a hybrid system where it’s doing one thing at
one time and another thing at another time. And that’s just the way it goes. And you couldn’t argue,
oh, we shouldn’t do that. And then the other
way is to say, no, we should have a
homogeneous system that pretty much tries to do the
same thing all the time. And that might be formalist. That might be more
contextualist, and you have
certainly people who advocate for one or the other. And from our latter-day
point of view, the kinds of things people
said in the Langdellian era tend to speak to us as
addressing that choice. Should we be more formalistic? Should we be more contextualist? That’s asking a different
question, perhaps, than the kind of questions that
people like Ames and Langdell were asking when
they were trying to build up a more
hybrid system of the kind that I was describing. But, again, that’s just by
way of increasing the paradox but not diminishing it
or disagreeing with it. JOHN GOLDBERG: Thank you. [APPLAUSE]