karl llewellyn and next step and some realism and harvard law review and 1931 and roscoe pound

I am indebted to NEH Hull's fine study Roscoe Pound and Karl Llewellyn not only for an engaging narrative of their interactions before and during 1931 but of the evolution of lists of legal realists made by Llewellyn. Hull doesn't mention it but it seems logical to me that Llewellyn, in order to parry the immense influence of Roscoe Pound and his criticism of what he called the "new school" of realists, had to try to line up all the names of people "on his side" in order to counteract the influence of the Dean of Harvard Law School. Thus, Llewellyn's making of lists of realists in 1930 and 1931 was really a way to try to "level the playing field" between him and Pound.

The Evolution of Lists of Realists

Between 1930 and June 1931, Llewellyn made five separate lists of Realists, none of which agree with each other completely, and some which differ dramatically from each other, before settling on a list of 20 men as Legal Realists in the June 1931 HLR article (Hull, pp. 343-46). (I) In an 1930 law review article he had listed 16 names; (II) a March 17, 1931 letter of Llewellyn to Pound suggested 13 names (he was asking Pound for his advice in this letter on who else to add to a possible list). Then, (III) a March 27, 1931 memo drawn up by both Llewellyn and Jerome Frank, whom Pound had uncharacteristically pounded in a review, listed 19 names. (IV) Llewellyn then wrote a second letter to Pound on April 6, 1931 in which he divided potential realists into three categories and gave Pound a whopping 44 names. (V) Pound's evasive yet critical response to this last list may have been influential in Llewellyn's whittling down the list of 44 names in April to a 20-man list in his June article. In addition, there were no "categories" of realists in the June article.

Naming Names

Let's begin with some brief observations. There are only six, yes only six names that made it on all five lists: Underhill Moore, Samuel Klaus, Leon Green, Hessel Yntema, Charles C. Clark and William O. Douglas. Someday I might write an essay on the contributions of each, but for now I won't. Three additional names on the 1930 list made it only on the big 44 man list of April 6, 1931: Felix Frankfurther, Milton Handler and James M. Landis. The seven other names given in his 1930 article were mentioned in no other list (among these were Supreme Court Justice Louis Brandeis and Austrian sociological jurisprudent Eugen Ehrlich). This dispatches of the first list.

The second list, from March 1931, consisted of 13 men, six of whom are listed above and then seven whose names were listed in all four remaining lists. They are: (a) Jerome Frank (whose radical 1930 book on judging drew the ire of Pound, as well as many others. His celebrated idea was that judges really don't perform what all would call "legal reasoning." They just backfill with legal terminology after they have already made a decision, which is usually based on their prejudices and experience); (b) Herman Oliphant; (c) Walter Wheeler Cook; (d) Max Radin; (e) Karl Llewellyn himself; (f) Arthur L. Corbin (the great contracts professor at Yale, who was the motivating force behind the famous sec. 90 of the Restatement of Contracts and the entire Restatment (Second) of Contracts); and (g) Wesley Sturges.

The third list, consisting of 19 names, had the six common to all, the seven common to lists II-V, and six additional names, four of which appeared in lists III-V and two of which were only in lists III and IV. The four who appeared in the remaining three lists are: (a) Joseph Bingham, whom Pound had suggested to Llewellyn as a result of the latter's March 17, 1931 letter; (b) Judge Joseph C. Hutcheson (who talked about the "hunch" of judging); (c) Edwin W. Patterson; and (d) Leon A. Tulin. The two more on this list who only appeared on lists III and IV were Thurman Arnold and Walton Hamilton.

Before saying a word about the fourth list, with its 44 names, let's skip over it to the gang of 20 which were listed in Llewellyn's June 1931 HLR piece, in which publicly "named names" for the first time since the 1930 article. This list consisted of the six names common to all five lists, the seven names common to lists II-V, Bingham, Hutcheson, Patterson and Tulin (common to lists III-V), and Joseph Francis, Ernest Lorenzen (suggested also by Pound to Llewellyn) and T.R. Powell, these last three appearing solely in lists IV-V. Thus the 20-man list of realists which Llewellyn suggested in his 1931 HLR article was only the latest iteration of an evolution of names that was ever-changing, growing and contracting and finally seemingly "frozen" in print in June 1931.

Understanding the Fourth List (April 1931) and Conclusion

The fourth list was a group of 44 names sent by Llewellyn to Pound for his comment in April 1931, while Llewellyn was putting together his HLR essay. Nineteen of the names appear on no other list and were apparently given to Pound to try to "draw him out" by giving him and opportunity to express his opinion about their "realist" tendencies. But Pound refused to be drawn into Llewellyn's net and responded, no doubt to Llewellyn's chagrin, that if this many people were realists then everyone, in fact, was probably a realist. For one trying to establish the distinctives of a movement, as Llewellyn was, this was not music to his ears.

His selection of the 20 names, given above, for his realist list in June 1931 was driven by pragmatic concerns--these men had pursued a realist methodology, by using the social sciences or being open to social scientific data to form the basis for legal conclusions. Yet, there was also another theme running through Llewellyn's piece--that he wanted realism to be based on a philosophical approach to problems. Thus, theory and method and a list of names. That is all we have to go on. Not too much different, really, than Quebedeaux's attempt to define what it meant to be a "Young Evangelical" in 1974. But both Quebedeaux in 1974 and Llewellyn in 1931 sensed that big changes were underway, and that the future belonged to some of the younger people whose names they highlighted. Maybe, in the final analysis, that is what we learn through these "list" essays. Lists like these can be a way of telling the world what is coming, if the world has ears to hear.

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