Prof. Bill Long 10/11/05
Rehabilitating a Legal "Symbol"
The purpose of this essay is to list about ten or so insights or contributions of Kimball in his 1999 article "Warn Students that I Entertain Heretical Opinions..."
1. Let's begin by trying to understand how Kimball wrote his article. It arose out of two long periods of research in the Special Collections Room at the Harvard Law Library (appropriately named the Langdell Library). Instead of being satisfied with secondary researchers views on Langdell ("L"), he went through all of the "Langdell file," as well as that of his prize student, and future colleague, James Barr Ames. Working in special collections rooms and doing archival work is really like putting a puzzle together. You have a basic chronology of a person's life and some of his "major" works; what the archival work does is allow you not simply to "fill in" the gaps but to change your perspective on the subject matter. When you have the "real documents" in your hands, your imagination is piqued. You try to get a "feel" for the person which electronic resources simply cannot provide. So, Kimball worked closely through everything that was there. One of his real contributions (and I suppose it was an interesting discovery) was the nature of the marginal notes by L and Ames and the way these marginal notes turned into a growing "conversation" with the law that enabled Kimball to bring L to life in his imagined conversations.
2. Then, let's go to the title of the article. It is a quotation from L from his second notebook from his Partnership lectures of 1870. That is, it is a quotation from the earliest days of L's teaching at HLS. In the context of speaking of adopting the "right opinion" contrary to doctrines prevailing in courts, L says, "Warn students that I entertain heretical opinions, which they are not to take as law but as what I think the law ought to be.." (p.70). Kimball puts this quotation in his title because it is L's own admission that what he is doing is partially subversive of the legal establishment. If, as the detractors of L are right (that L was simply a rigid and uncreative thinker), why is he talking about himself in this way?
3. Kimball mentions in passing some of the "procedural" changes L brought to law schools. These included minimum academic standards for admission (normally a B.A. degree, though many law schools continued accepting non-B.A. students into the 20th century); graded and sequential curriculum (first-year, second-year); a professional faculty (rather than "part-time" practitioners or judges); and the transformation of the library to a place for "research" from a sort of "storage room" for books. Then, there was the introduction of the casebook method, which I spoke of in the previous essay.
4. Kimball takes care to show how the pejorative label grew and attached to L. Other than Holmes' statement that L was the "greatest living legal theologian," all of the comments come from L's later years (he lived from 1826-1906) or from after his death.
5. Perhaps one of Kimball's biggest contributions is his attempt to "periodize" the life of L at Harvard. This periodization leads to his revisionist "take" on L. It is easiest to see the results of K's effort by studying Table 2 on p. 65. It shows that the "Early Period," from 1870-1883 saw L producing material at a furioius pace. He put out casebooks and doctrinal summaries on almost a dozen subjects. The detailed list is in Appendix I (132ff.), but some examples are his 1870 "Notebooks of Lectures on Partnership;" 1871 Selection of Cases on the Law of Contracts; 1872 Selection of Cases on Sales of Personal Property; 1871-76, "Notebooks on Civil Procedure" in 4 vols.; 1875 Cases in Equity Pleading Part I; 1876 Cases in Equity Pleading Part II, etc. Then Kimball argues for a "first hiatus" from 1883-87, a "middle period" from 1887-1892, in which L was primarily engaged in writing law review articles; a "second hiatus" from 1892-1897, and then his "late period" from 1897-1906, where he wrote more law review articles and kept teaching the same courses as he had for years. Although this periodization sounds more like the dynasties of ancient Egypt than the life of a modern person, it is helpful to establish what Kimball is trying to show: that the negative characterization of L comes from his late period, when L's life situation had changed considerably, and that, in fact, the "early" L was quite intellectually stimulating, willing to change his mind and adapt his method, and also interested in sometimes standing against the decisions of courts if he felt they were wrong.
6. L has often been characterized as a sort of "bull in the china shop"-type of thinker, who was not at all interested in current legal practice if it didn't fit into the nice and neat "system" he was constructing. Kimball wants to put that point to rest by his point that the "legal doctrine of partnership must be inferred from 'careful observation' of extralegal factors, such as the practice of merchants" (p. 69). As L himself says, "I answer without hesitation that the mercantile community, their ideas and their practice, constitutue the ultimate source of information on the subject" (of what constitutes a partnership; quoted on p. 69).
7. He looks at L as not only the pioneer in the casebook method but as one who invented the "notebook," a kind of halfway point between lecturing and the casebook. By so challenging students to read cases for themselves, "it appears that L was experimenting with a pedagogy that he felt would be appropriate to his purposes and jurisprudence" (71).
8. He makes use of the glosses (i.e., marginal notes) made by L and Ames in their casebooks or notebooks to show how the case method actually was practiced. Kimball aruges that the annotations fall into five categories: (1) observations that explain, summarize or elaborate points; (2) questions that L wants to pose to his students; (3) hypotheticals which L wants to raise in class; (4) "heretical" or non-standard interpretations of the cases. At times, as Kimball shows, L criticizes the way the court thought, but other times L simply observes that someone was "wrong;" (5) L's own revision of an earlier opinion. K concludes: "Taken together, these five purposes and strategies offer good reason to question the characterization of L as dogmatic, rigid, and closeminded" (76).
9. He gives explanations for why L might have "changed" his style in the mid-1880s and thereafter. First, he might have felt he arrived at the "right" decisions after sifting and correcting for a decade. It is not unusual, in addition, for a scholar in his/her mid 50s or so to "settle in" to an approach that seems to fit the evidence and the personality of the scholar. Second, the administrative burdens of deanship might have taken a toll on continued creative thinking. Third, and in my mind most significant, is the fact that L, a very proud and dignified man, became nearly blind in the "middle" and "late" periods. The quotation on the bottom of p. 127, where Eliot remarked about the dangers faced by L at the advent of the automobile, is poignant. What is the effect of near blindness to a person in this situation? Surely to "pull back" in his teaching, to assume a more dogmatic cast, to become less "open" to what people have to say. If you can't see the students, can't recognize what they are thinking or the questions that may be in their minds, how can you really engage in a conversation with them?
10. Finally, Kimball's attempt to reconstruct a conversation in class (I gave you one example of it) is creative and even amusing. The subject matter may be obscure, but I wanted you to see the way that Kimball portrayed James Barr Ames--as a faithful, and a bit of a kiss-up, student who would take down every word of his teacher, hoping some day to be in the position of teaching alongside of him (which he did).
Though the painstaking nature of the article makes demands on the reader, I think these essays help explain what is at stake in Kimball's article. It is on the cutting edge of the "rehabilitation" movement now for L. I am glad the movement is underway.
Copyright © 2004-2007 William R. Long