B004E3WO62 EBOK

by Morton J. Horwitz

  Llewellyn's List

  Llewellyn's 1931 list of twenty Realists-the starting point for all previous discussion of Realism-has resulted in some fundamental misunderstanding of the meaning and significance of the Realist movement. The list does not reveal wide reading in or understanding of the currents of American legal thought. Ten of the twenty were either teachers of Llewellyn's at Yale or subsequently colleagues at Yale or Columbia. From the perspective of more than a half century, only eight or nine can be regarded as having been at the forefront of legal thought. In my judgment, six were not sufficiently important or distinguished as scholars even in 1931 to have made the list. The list shows not only how ill equipped Llewellyn was at that time to represent new trends in legal thought but also how narrow his conception was.

  The core group on Llewellyn's list-Clark, Moore, Oliphant, Yntema, Douglas and Cook-were all deeply involved in the relationship between law and the social sciences;85 some even represent what seems, from our contemporary perspective, the narrowest and most naively behavioralist versions of positivist social science.86 Pound's criticism of Realism for its positivism, dogmatism, and reductionism was able to capture quite well the severe limitations in this prominent strand of Realist work.

  But Llewellyn chose to over-emphasize this group not only because his own institutional affiliations limited his intellectual horizons, and not only, as we shall see, because his working knowledge of intellectual developments in law was concentrated in his own specialized areas of legal scholarship, but also because Llewellyn's eccentric views of Realism shaped the list. As Llewellyn stated many times, Realism was a "method" or "technology" not grounded in historical or political or ideological controversies.87 It entailed no substantive content.

  Llewellyn's own subsequent work was greater than that of most of the scholars on the list, in part, because the tremendous variety of perspectives that he generated in the course of his own scholarly career reflected a staggeringly diverse range of methodologies. The eccentric and poetic sides of his intellect usually conspired to prevent his positivist methodological inclinations from producing mechanical or reified insights. In practice, he usually ignored the and dogmatism of his view of methodology as technology because of his everyday pluralist tolerance of ambiguity and contradiction. Indeed, his own "institutionalist" and "evolutionist" perspectives were ways of infusing supposedly descriptive statements with undisclosed normativity. Yet, this passionate and intense man chose to represent his movement as primarily creating a technology.

  Not only was the admirable Progressive support for reformist social science unfairly downgraded by Llewellyn's having reduced it to mere technology, but he also simultaneously contributed to the identification of Realism with the most intellectually regressive forms of behavioral and value-free social science. As a result, the now standard picture of Legal Realism needs to be corrected twice over. First, it needs to be reconnected to earlier forms of social science that were anything but value-free; and second, because it has often been identified exclusively with positivist social science, the most significant legacy of Realism has all but been ignored. American Legal Realism was perhaps the earliest intellectual expression in America of cultural modernism or what Peter Novick calls "cognitive relativism." In their extraordinarily fertile critique of legal reasoning, Realists drew into question traditional foundations of thought and structures of understanding. Their intense interest in the socially constructed character of frames of reference, categories of thought, and legitimating concepts was closely linked to their passionate desire to challenge the claimed objectivity of deductive and analogical reasoning. This critical thrust of Realism has been virtually smothered by the exaggerated emphasis placed on the Realist turn to social science. The result has been virtually to ignore a central element of the Realist legacy-its interpretive or hermeneutic understanding of reality.

  This emphasis on the cognitive relativism of Realism is offered as a corrective to the usual picture of Realists as ethical positivists or moral relativists. In fact, many Realists were passionate about values and had no problem in identifying social injustice. Nevertheless, many of their statements about cognitive relativism were mistaken by a highly moralistic culture as affirmations of moral relativism. Indeed, once we take account of the considerable overt hostility to ethical positivism among some prominent Realists, it becomes clear that we must take Llewellyn's unfortunate identification of Realism with value-free social science with a grain of salt.

  Who Were the Realists?

  What was omitted from Llewellyn's picture of Realism?

  First, and perhaps most important, he virtually ignored the body of brilliant criticism of Classical Legal Thought that had already become part of pre-World War I Progressive legal consciousness. Just as Holmes was an acknowledged inspiration for the new jurisprudence, so too were John Chipman Gray68 and Pound,89 Brandeis90 and Cardozo,9' Hohfeld,92 Learned Hand,93 and Harlan Fiske Stone.94

  Other than Llewellyn's Yale teachers, the only pre-war thinker to make the list was Walter Bingham, certainly not a major figure. Hohfeld, whom he would surely have listed, had already been dead for twelve years.

  A second influential group that Llewellyn virtually ignored were the great institutional economists, the first generation of whom founded the American Economics Association in 1885.95 Two of the important figures who wrote on legal subjects were Richard T. Ely and John R. Commons.96 In the controversies over rate making and the theory of value during the 192os, they were joined by Gerard Henderson, Robert Lee Hale, and James Bonbright, the latter two of Columbia.97 The most influential legal work by an institutionalist, published one year after Llewellyn's list appeared, was Adolph A. Berle's The Modern Corporation and Private Property (1932), co-authored with Gardner Means.98 The book highlighted for an entire generation the separation between ownership and control in the modern corporation. The monumental edition of the Encyclopedia of the Social Sciences, published between 1930 and 1935, represents the most successful collaboration of institutional economists and Legal Realists.99

  The institutionalist perspective of the Encyclopedia highlights a form of social science that, while careful to speak in tones of scientific expertise, was also proud to acknowledge its very close connection to Progressive social reform. It would have been impossible, after reading the Encyclopedia, to describe it as simply applying a value-free method or as just representing a technology.

  A third group were the philosophers John Dewey100 and Morris Cohen, as well as his son Felix Cohen, whose scholarly career had just begun its tragically short but spectacular ascent in the same year that Llewellyn's list of twenty appeared. Each of these writers opposed Llewellyn's insistence on separating facts and values, and devoted their scholarly careers to opposing the sort of positivism that it produced. Dewey, in particular, elaborated a pragmatic, experimental, and dynamic vision of value formation, dependent on regular interactions between theory and practice.101

  Fourth were the sophisticated and critical doctrinal writers.

  Llewellyn often complained that the critics of realism had overlooked the theoretical significance of some of the best works by realists because of a tendency to draw artificial distinctions between "jurisprudential" and "substantive" legal writings.. . . Thus Llewellyn's final position appears to have been that the Realist movement should be judged mainly by its influence on detailed work in various spheres of legal activity. 102

  Yet Llewellyn's list of twenty in many ways significantly contributed to the generalist and jurisprudential bias of subsequent interpretations of Realism.

  His limited knowledge of work outside of his own fields of contracts and commercial law is quite apparent in the list. While, of course, he included the greatest of the new doctrinal writers, his "father in the law," Arthur L. Corbin, he failed to include many other important doctrinalists. In torts, though he listed Leon Green, he failed to include Francis Bohlen,103 Jeremiah Smith, Fleming James, the original and penetrating torts-co
ntracts scholar Nathan Isaacs, or even the wide-ranging Englishman, Harold Laski. 104 If the torts writing of Harvard's Warren Seavey tended to be old school, some of his greatest work in agency law was quite critical and very much in the spirit of earlier work begun by Walter Wheeler Cook.105

  Llewellyn's 1931 list could not, of course, have been able to capture subsequent Realist doctrinal work in the 1930s, which remains a prominent part of the Realist legacy. Much of the most important and lasting Realist writings were technical doctrinal articles written in criticism of the work produced under the auspices of the American Law Institute, which was founded in 1923.106 During the early 1930s, the first restatements in various fields began to appear, each of them an attempt to reassert the formalism and conceptualism of the legal thought of the old order. 107 Lon Fuller and John Dawson, for example, wrote important articles criticizing the first restatement of contracts. 108 And in criticizing Joseph Beale's first restatement, David Cavers continued the Realist revolution in conflict of laws originally launched by Walter Wheeler Cook. 109

  The anti-formalist doctrinalists often did not think of their work as political. Lon Fuller's co-authored 1936 article, "The Reliance Interest in Contract Damages," 110 remains perhaps the single most influential piece of Realist doctrinal work, though it was written by a scholar whose own jurisprudential work had already begun to target Legal Realism. How does one account for this seemingly striking contradiction?

  Written in the midst of an impending constitutional challenge to the NorrisLaGuardia Act (1932)111 barring the labor injunction in federal courts,' Fuller's article applied the same kind of analysis to contract law that the draftsman of the act, Felix Frankfurter, had hoped would save its constitutionality. Frankfurter had maintained that because "remedies" were independent of "rights," legislatures were free to change them on the basis of considerations of social policy. 112 This idea originated in Walter Wheeler Cook's 1918 application of Hohfeld's ideas to the labor injunction and continued to be elaborated in various constitutional defenses of state laws barring the labor injunction. 113 Similarly, Fuller began by insisting that there was no way logically to derive contract remedies from the will of the parties or the "nature of contract." The choice among contract remedies was to be determined, not by some deduction from the parties' rights, but rather by the social purposes it would serve.

  The most visible influence of Fuller's article-and perhaps the most tangible indication of the influence of Legal Realism on legal education-was that the entire next generation of law school contracts casebooks reversed the traditional order of presentation and now began teaching remedies before rights. 114 If the message of legal orthodoxy had been that "rights determine remedies," the new message appeared to be that "remedies determine rights." Thus, rights themselves were now conceived of as, derivatively, social creations.

  "The Reliance Interest in Contract Damages" is the most prominent example of a form of doctrinal writing that was focused, localized, and technical in its primary orientation. It embodied an anti-formalist critical spirit that it brilliantly deployed against one of the dominant formalistic paradigms of the old order-the view that remedies logically flow from the nature of rights. Its critical moves demonstrated how pervasively anti-formalism had penetrated sophisticated legal consciousness, even among one whose more general jurisprudential and political perspective was, in many respects, hostile to Realism. Fuller's strategy of disaggregating and contextualizing the question of contract damages, as well as the consequentialist policy orientation he brought to the question, were part of a generational revolt against formalism that was still capable of producing revolutionary technical insights whose political significance he may never have realized.

  The last group Llewellyn ignored were the administrative lawyers, Frankfurter and Landis, both of whom did appear on the longer unpublished list Llewellyn sent to Pound. In one of Llewellyn's most misleading asides justifying the composition of his original list of twenty, he wrote: "Frankfurter we do not include; he has been currently considered a 'sociological jurist,' not a 'realist.' " 115 Whatever one might say in justification of such a distinction, it does nevertheless clearly underline the distortion produced by Llewellyn's attempt to reduce Realism to particular methodological commitments. For as we shall see in Chapter 8, administrative law is in many ways the culmination of the crisis of legitimacy that Realist criticism produced. It reflects the successful Realist attacks on the naturalness of the market and on the sharp classical division between public and private law. It expresses the decline in legitimacy of court-centered conceptions of law and the emergence of a social engineering perspective out of the ruins of doctrinal formalism.

  But Llewellyn's technological view of Realism encouraged him to miss the significance of the relationship between Legal Realism and its efforts, especially after the New Deal, to legitimate the new bureaucratic, regulatory state.

  Legal Realism and Iconoclasm

  Llewellyn always thought of himself as "a rebel, a freak, a non-conformist." 116

  Queerness of view and action seems to be in my blood. My great-grandmother in her eightieth year became a Seventh Day Adventist, and every Sunday, seated in blazing sunlight in her parlor window, jaw set and knitting needles flying, rebuked the unenlightened as they passed to church. My grandfather lent help and countenance to the then looked down upon Salvation Army, and was a woman suffragist in the 'seventies. My mother reads Ellen Key, works for birth control, votes for Debs, and distributed peace leaflets at the Democratic convention in New York. Through college I conformed so little that I did not discover until after graduation what a Big Man was; my uncut thatch became a byword in my law school days; and the canons of etiquette which I have left unbroken include few things but eating with the knife. My views have been, and are, as curious as my clothes. With a few more years, and more experience, I have gained some respect for most of the accepted ways of action, but little respect indeed for most of the accepted ways of thought about such action. 117

  The "tradition of militant non-conformism on his mother's side" 118 seems to have been matched by a down-to-earth pragmatism on his father's. On graduation from Yale College in 1915, he wrote, "I had become clear that I wanted to teach, but had gotten no further towards picking a field than a general interest in Latin. My father's urging got me into law, and my own inclinations got me back into teaching." 119 Of his teachers at Yale Law School, Llewellyn often referred to Corbin as his "father in the law" and, in fact, addressed him in private as "Dad." 120

  As his biographer concluded, "there can be little doubt that in his career as a jurist he owed more to [Corbin] than to any other single person." 121 Since "Corbin's most striking characteristic was the patient relentlessness of his scholarship," 122 it is not surprising that Llewellyn "often used Corbin as an exemplar of his ideal of `the legal craftsman.' 11 121

  Llewellyn's fondness for praising what he would refer to as "good, clean, solid work" must have seemed strange to those who saw him as a volatile genius, bub bling over with brilliant insights, but slapdash in execution. But much of Llewellyn's work is marked by painstaking efforts of careful scholarship which seem out of character with some of his more freewheeling writings . . . a tension between his spirited and imaginative insight and the "craftsmanship" that he so much admired in Corbin, between his own inclination and his scholarly ideal. 124

  Of Llewellyn's other teachers at Yale Law School, the most important influence was Wesley N. Hohfeld. Hohfeld had come to be viewed by "the better students" with "a combination of awe and evangelical enthusiasm," and Llewellyn was "one of his most ardent admirers." Llewellyn's own praise for Hohfeld "stressed the breadth of Hohfeld's learning and his vision of the law as a whole more than the more prosaic virtues of clarity and precision." 125 After Hohfeld's early death, Llewellyn, along with his fellow students, regarded him "as a prophet tragically cut off in his prime." 126

  The polarities in Llewellyn's personality and intellect seem especially striki
ng in their intensity. Though "an emotional and intuitive . . . person" 127-"some- one with poetic tendencies"-he loved "technical complexity" 128 in the law and chose to work in commercial law, often regarded as one of the most "prosaic and technical . . . subject[s.]"129 His writing style "fascinates some readers, repels others and perplexes most." 130 The "strangeness," "erratic" and "idiosyncratic" character of his mode of expression seems to reflect a tormented and "volatile genius." 131 His three marriages, during an era when divorce was extremely rare, and his lifelong problem with alcoholism seem to confirm this picture of a soul in conflict. 132

  Though he had an "intensely religious nature," lie was fanatically hostile to "contemporaneous polysyllabic professionalized academic" philosophy.133 "What the hell has Kant to do with my course on jurisprudence?" he thundered at a student who submitted a paper on the Kantian distinction between the "is" and the "ought." 134 Rather, he maintained that his jurisprudence course was "the best bread-and-butter course" and "the one with the most immediate practicality" of any taught at the Law School. 135 It was this slightly philistine attitude towards jurisprudence-perhaps justified by the blatantly apologetic character of most traditional jurisprudential writing-that shielded Llewellyn from the strongly antipositivist messages of John Dewey, Morris Cohen, and Roscoe Pound, as well as the even more eloquent later warnings of Felix Cohen.' 36

  Llewellyn's frequently expressed hostility to fancy "academic" work seems to have pushed him into rebelliously non-conformist modes of informal expression, including stylistic monstrosities and somewhat shocking colloquialisms. His stylistic informality led him to coin phrases like "situation sense" and "law-stuff," 137 which occasionally illuminate but more often communicate a certain suffocating technocratic or scientistic sensibility. Realism was "a sound, horse sense technology."138 "What realism was, and is, is a method, nothing more. . . ." 139 Even though as he grew older, he wrote at age thirty-one, "I grow no less a rebel, a freak, a non-conformist," 190 were it not for his study of the social sciences, "I should by now hold some obnoxious fighting faith and be stumpspeaking a vigorous progress into jail." Social sciences both kept rebellious im pulses in check and permitted their displacement onto more legitimate forms of cultural eccentricity. In what his biographer calls "a particularly revealing document" in which Llewellyn draws analogies between law and religion, he criticized St. Paul for straying from Jesus's teachings. "I find I feel about Paul the same way I feel about great lawyers whom I think to have gone sometimes off track. He over-intellectualized so far as he wrote. . . . Let me then stay as close as I may to Jesus' and to Paul's living rather than-or better, together with-his writing." Llewellyn concluded: "With this, 'rebel' and 'non-rebel' begin to line up. I observe with amusement that I am duplicating in religion a twenty-year road in legal work." 141