Pound and Legal Realism (1900-1930)
Prof. Bill Long 10/20/05
I thought it best in dealing with the slippery subject of American Legal Realism to put together a detailed outline of some of Pound's biography and contributions as well as some significant events in the 1920s that helped define this movement. Much more could be said, I assure you.
Pound and the Evolution of Legal Realism
Introduction: Thesis is that we see "pre-realism" in Holmes and Pound, as they strive for a new method to take into account the social realities of "today." I will argue that Pound saw the need of a legal system that was: (1) "instrumental," i.e., that dealt with societal realities as they actually were and not through a concern for system-building, and (2) "sociological," i.e., where lawyers and law professors would use methods developed in other social sciences to help describe and "fix" societal problems. My contention is that this method, felt by Holmes and described by Pound, really didn't "catch" on immediately. It began to have resonance about the time of WWI, which put everything "on the shelf" until around 1920. Then, in the 1920s, the schemes hinted at by Holmes and Pound would be picked up by many. The 1920s and 1930s, then, saw the flowering of legal realism. Realism's ultimate goal was to effect societal engineering through intelligently-fashioned law--law that arouse out of deep familiarity with the actual practices of institutional life in America. I will also give a "visual" Illustration through some words about the development of American Art.
I. The Deep Historical Context (1885-1900)
A. The Gilded Age (ca. 1890) and Progressivism (ca. 1905).
B. Centralization of Wealth Through The Trust
C. Immigration and Urbanization--Riis; Sinclair
D. How Should Law Respond? Insufficiency of the Langdellian Approach.
II. Pound and the Early 20th Century--A Combination of Ambitious Academician and Law Reformer
A. Early Influences and Biography-- Dr. Charles Bessey (Botany); Sociologist Dr. Edward Alsworth Ross (1901-06 at NE). Pound's bio-- 1899-1903 (Ass't Prof NE); 1903-1907 (Dean NE); 1907-1909 (Northwestern) ; 1909-1910 (Chicago); 1910-- (Harvard)
B. 1904-- "A New School of Jurists" --arguing for a jurisprudence which described how law actually worked.
C. 1905--"Do we Need a Philosophy of Law?"-- describing dissatisfaction with current legal system; too little responsive to social needs.
D. 1905 Lochner v. New York, a truly big US Sup. Ct Case
E. 1906 Address at annual meeting of ABA-- "The Causes of Popular Dissatisfaction with the Administration of Justice." This was a clarion call to reform where he attacked, in a veiled fashion, the jurisprudence of the Fuller Court.
F. 1908-- "Mechanical Jurisprudence"--Discussed here.
III. Legal Realism After WWI
A. The Dewey Lecture in 1922--Feldman. p. 110. Legal Realism then developed primarily at Columbia and Yale Law Schools, with the Institute of Law at Johns Hopkins beginning in the fateful year of 1929 (and closing a few years later).
B. Four Features of American Legal Realism
1. The emphasis on "Empiricism." Note the studies that Feldman refers to on p. 113. The focus here is on how institutions actually worked. The realization in law was that American institutions and business had become incredibly more complex since around 1900 but law had not figured out a way to understand this world--i.e., it was still dealing with the "mailbox rule." The interest here was to discover how law could meet the needs of current American life. The UCC is a direct outgrowth of this approach to law.
2. The Alliance with the Social Sciences, especially Sociology and Political Science.
3. The subjective basis of legal decision-making. Especially evident in Frank and Hutcheson.
4. A "relativistic" philosophy of law? That is, since law was seen not so much as "telic" anymore, the language of ultimate purpose or inner meaning of law dropped out. Concern was for the "use" of law to improve social conditions.
C. Relationship of Legal Realism to The ALI Restatement Movement
D. Will the Real Legal Realists Please Stand Up? Trying to come up with a "list" of Realists.
III. Conclusion: The "Victory" or "Collapse" of Legal Realism?
Two theses: Legal Realism either became so embedded in the way that the legal system operated that it triumphed so completely and we are all legal realists. OR, Legal Realism collapsed of its own weight during the Depression but especially when Hitler's rise to power threatened the Western World. The point here would be that Legal Realism's small "descriptive" work was no match for a tyrant. Law needed some deeper philosophical basis (the topic of our next discussion).
Copyright © 2004-2007 William R. Long