American Legal Realism and Pound and Moore and Dewey and 1922 and Frank and Law and the Modern Mind

Continuing, then, from the previous essay--the second generation of ALR begins with Roscoe Pound. Pound was, of all things, a Nebraska native (his family homesteaded around Lincoln), a friend of Willa Cather, and thought he wanted to be a biologist before becoming a lawyer. By the time he wrote "Mechanical Jurisprudence" in 1908, he was teaching at Northwestern Law School alongside of the great evidence scholar and treatise writer, John Henry Wigmore. Shortly after this time he became the Dean at Harvard Law School, and lived out the rest of his long life (he died in the early 1960s) in Cambridge, MA.

Mechanical Jurisprudence

If others cricticized Langdell for being an arid formalist, only interested in legal abstractions and not the pulsating reality of life, Pound would criticize a Langdellian-type of approach (he never mentions him by name) as a "jurisprudence of conceptions" (hence the derogatory term "conceptualism" to refer to the "Lochnerian" era). However, Pound is a major intellectual, possibly even more so than Holmes. Pound steeped himself in the jurisprudential movements of 19th century Europe, as well as his knowledge of American law, and brought those insights to bear on his criticisms of American law in 1908. In a nutshell, what bothers Pound are the supposed "rigid deductions from a priori conceptions." "Science" was conceived of as a "series of deductions" for these conceptualists, rather than a concern for "practical utility." "Practical utility" would be what Pound wants. He calls it the task of "sociological jurisprudence."

"Herein is the task of the sociological jurist. Professor Small defines the sociological movement as a 'frank endeavor to secure for the human factor in experience the central place which belongs to it in our whole scheme of thought and action.' The sociological movement in jurisprudence is a movement for pragmatism as a philosophy of law; for the adjustment of principles and doctrines to the human conditions they are to govern rather than to assumed first principles; for putting the human factor in the central place and relegating logic to its true position as an instrument."

Much more could be said about Pound. I know you believe me.

Other Second Generation ALRs

When most people think of the ALR, if they think of it at all, is the people around 1925-1940 at Columbia and Yale law schools who tried to apply the encouragement of the great American philosopher John Dewey (1859-1952) to law. In a 1922 seminar at Columbia he urged his hearers to subject law to the "empirical sciences." Of course, this was nothing other than what Holmes said in 1897 or Pound in 1908 but Dewey said it to a generation of brilliant young men coming out of WWI and ready to create the modern world. Feldman tells the story of how some of these figures, from Underhill Moore and Charles Cook "actually adopted (or attempted to adopt) the methods of the social sciences (in teaching law--p. 113)." Feldman comments:

"Instead of analyzing the issue by examining doctrine and cases, as a Langdellian might do, Moore sent questionnaires consisting of twenty-seven inquiries to all the commerical banks in Connecticut, gathered the answers, and sought to identify the actual banking practices regarding time notes." Id.

One of the brightest stars in the second generation ALR firmament was WO Douglas, who is so "recent" that even one of the WUCL faculty members was his clerk on the Supreme Court.

Jerome Frank/the ALI

Frank and the ALI really have nothing to do with each other, but they provide a fine coda to our treatment of Legal Realism. By the time Jerome Frank was writing in the early 1930s, psychology was all the rage. Clark University had been founded in Worcester, MA in the 1910s as the first American university in which psychology would explicitly dominate; Freud was, by the 1930s, a celebrated figure in the West and Jung's influence was growing daily. Frank was concerned about the problem of judging (another concern of the ALRs) and how judges actually came to their decisions. His style is limpid; I don't need to go over what he says. Fascinating, I believe, is his suggestion that law schools become, as it were, graduate schools of psychology, since knowledge of the human condition (i.e., the biases and preferences of judges) is the most important thing in getting "justice" for your client.

Then, we conclude with the American Law Institute (ALI). Some (as Feldman) would characterize this as a "Langdellian reaction" to the work of the early legal realists. I think this characterization is only partially correct. Certainly the publication of the Restatements (Contracts in 1932 was one of the first and most famous) showed the interest in "dehumanizing" law by establishing "rules" (note that there are no names in the law, only "A" and "B" and "C"), but I think it was primarily motivated by the idea that law was still uncertain and up for grabs. The ALI was convinced that there was such a thing as law and they would tell you what law was. It therefore was only a mild reaction against the more sociological excesses of the ALRs. Indeed, Benjamin Cardozo, who is often seen as one of the leading ALRs was a founding member of the ALI.