Holmes and Pound and Mechanical Jurisprudence and 1908 and sociological jurisprudence

The focus of class today will be on what Feldman refers to as "second generation" legal realism. If Holmes is a great symbolic figure for the first generation, Pound is for the second, even though some of Pound's most profound writing emerged out of the first decades of the 20th century. The focus of class today will be on reviewing Holmes, understanding Pound's article on "Mechanical Jurisprudence," and then "fast-forwarding" to Frank's 1933 comments on the nature of judging, from Law and the Modern Mind.

Periodizing History

Here is my division of history, which is indebted to Feldman but conceives of things somewhat differently. Langdell, as we know, was the great bogey-man whom all wanted to attack. I think the thing that most upset people about him was their perception that his "system" was developed with little regard to the felt needs of the day. But, significantly, the felt needs they were thinking about were those of 1910 or 1920 or 1930, which differed dramatically from the simple life of 1870 in New England. Yet, the second generation legal realists, as did Langdell, wanted to maintain the language of law as science (Holmes was not so insistent on this). Yet their definition of science was considerably different than Langdell's. For the former, science mean the classification of things according to categories, a Linnean approach; for the later realists it meant empirical social science in accordance with "modern" methods of investigation.

So, if pressed to apply periods to this history, I would say that the time of direct "Langdellian influence" was from 1870-1905, that of first generation legal realism (Holmes) from about 1885-1910 and that of second generation legal realism (Pound and then the great number of thinkers in the 1920s and 1930s) from 1905 until 1912, then skipping about 10 years (because of WWI), and resuming from 1922-1940. In a sense all American jurisprudence today is the child of second generation American legal realism. For example, the most profound "gift" of ALR to today's law is Article 2 of the UCC. It was authored by Karl Llewellyn, a leader of the second generation ALRs.

Landmarks in the Periods

As you will no doubt discover, characterization is the centrally important duty of a lawyer. You try to characterize the facts of your case, the behavior of your clients, etc. in the most favorable light to a court or agency. So, I think that several things characterize the generations of ALR.

What characterizes the "first generation" Holmes, for me, is his prescience, his ability to see ahead of time, as it were. He does this in several ways in "The Path of the Law (1897)." First, he contrasts the syllogistic (i.e., Langdellian) method in law with law concerned with the "felt needs of the time," driven by political philosophies and the deep longings or desires of the human heart. This sentence, more than anything, presages the coming of legal realism--for legal realism attempted to make justice "real," to make it apply to the felt needs of the era. Second, he talks about the "man" of the future being an economist--one familiar with statistics. This foreshadows the call in Pound for "sociological jurisprudence," a way of approaching law that takes newly developed social scientific models as "gospel" for improving life.

Third, he speaks of law as a "prediction" of what the courts will do. Isn't that perfectly adumbrating the "psychological" jurisprudence of Frank? Fourth, he speaks of the separation of law and morality, focusing one of his examples on contract law. Breaching a contract it is not a sign of moral defiency but, usually, cold calculation--that it is "cheaper" for you to breach and pay the penalty/fine than to go along with the deal. This one sentence foreshadows the entire field of law and economics, which still speaks with a loud voice today. Thus, in my mind, the "genius" of Holmes lies in two things: (1) his epigrammatic way of speaking, in which he summarizes his points with blinding clarity and in brief compass; and (2) his ability to read the "signs of the times" and see what is coming. He was right in all of the four points I make.

Go to the next essay to for my characterizations of the second generation of ALR.