4. See J. KLOPPENBERG, UNCERTAIN VIC'T'ORY: SOCIAL DEMOCRACY AND PROGRESSIVISM IN EUROPEAN AND AMERICAN THOUGHT, 1870-1920 (Oxford Univ. Press 1986).
5. See E. PURCELL, THE CRISIS OF DEMOCRATIC THEORY: SCIENTIFIC NATURALISM AND THE PROBLEM OF VALUE 3-12 (Univ. Press of Kentucky 1973); H. MAY, The Rebellion of the Intellectuals, 1912-1917, in IDEAS, FAITHS, AND FEELINGS: ESSAYS ON AMERICAN INTELLECTUAL AND RELIGIOUS HISTORY, 1952-1982, at 3-19 (Oxford Univ. Press 1983).
6. Compare HERBERT CROLY'S THE PROMISE OF AMERICAN LIFE (Macmillan 1909) with WALTER LIPPMANN'S PUBLIC OPINION (Harcourt Brace 1922). See R. STEEL, WALTER LIPPMANN AND THE AMERICAN CENTURY 58-59, 18o-85 (Little, Brown 198o).
7. The literature on Legal Realism has become quite extensive. The interpretation whose perspective I most share is Singer, Legal Realism Now, 76 CALIF. L. REV. 465 (1988) (reviewing L. KALMAN, LEGAL REALISM AT YALE, 1927-1960 (Univ. of North Carolina Press 1986)). Among the most useful additional sources are L. Kalman, supra; E. PURCELL, supra note 5; W. RUMBLE, AMERICAN LEGAL REALISM (Cornell Univ. Press 1968); W. TWINING, KARL LLEWELLYN AND THE REALIST MOVEMENT (zd ed., Univ of Oklahoma Press 1985); Dawson, Legal Realism and Legal Scholarship, 33 J. LEGAL EDUC. 406 (1983); Gilmore, Legal Realism: Its Cause and Cure, 70 YALE L.J. 1037 (1961); Hull, Some Realism about the Llewellyn-Pound Exchange over Realism: The Newly Uncovered Private Correspondence, 1927-1931, 1987 Wis. L. REV. 921; Purcell, American jurisprudence between the Wars: Legal Realism and the Crisis of Democratic Theory, 75 AM. HIST. REV. 424 (1969); Schlegel, American Legal Realism and Empirical Social Science: From the Yale Experience, 28 BUFFALO L. REV. 459 (1979) [hereafter Schlegel, Yale Experience]; Schlegel, American Legal Realism and Empirical Social Science: The Singular Case of Underhill Moore, 29 BUFFALO L. REV. 195 (1980) [hereafter Schlegel, Underhill Moore]; White, The Evolution of Reasoned Elaboration: jurisprudential Criticism and Social Change, 59 VA. L. REV. 279 (1973); White, From Sociological jurisprudence to Realism: jurisprudence and Social Change in Early Twentieth-Century America, 58 VA. L. REV. 999 (1972).
8. Llewellyn, A Realistic Jurisprudence-The Next Step, 30 CoLuM. L. REV. 431 (1930).
9. See Pound, The Call for a Realist jurisprudence, 44 HARV. L. REV. 697 (1931).
1o. See Llewellyn, Some Realism About Realism-Responding to Dean Pound, 44 HARV. L. REV. 1222 (1931).
11. Id. at 1226 n. 18. The sample included Walter Bingham (Stanford), Charles Clark (Yale), Walter Wheeler Cook (Hopkins), Arthur L. Corbin (Yale), William O. Douglas (Yale), J. Francis (Oklahoma), Jerome Frank (attorney, New York), Leon Green (Northwestern), J. C. Hutcheson (judge, 5th Circuit), S. Klaus (attorney, New York), Karl Llewellyn (Columbia), E. G. Lorenzen (Yale), Underhill Moore (Yale), Herman Oliphant (Hopkins), Edwin W. Patterson (Columbia), T. R. Powell (Harvard), Max Radin (Berkeley), Wesley Sturges (Yale), L. A. Tulin (Columbia), and Hessel E. Yntema (Hopkins). The Legal Realists' institutional affiliations in 1930-31 are from W. TWINING, supra note 7, at 76.
12. See Hull, supra note 7.
13. See, e.g., White, From Sociological Jurisprudence to Realism, supra note 7.
14. W. TWINING, supra note 7, at 104.
15. Id. at 1o5. We need to acknowledge at this point the recent publication in English of K. LLEWELLYN, THE CASE LAW SYSTEM IN AMERICA (P. Gewirtz ed,, Univ. of Chicago Press 1989), a translation of a book published in German by Llewellyn in 1933. The book arose out of a course of lectures that Llewellyn gave in 1928-29. While the book is an early example of Llewellyn's sophisticated reflection upon the case law system and the theory of precedent, it is nevertheless a narrowly focused piece of work that offers very little indication of broad reflections about the character of legal thought.
16. W. TWINING, supra note 7, at 105.
17. Id.
18. See id. at 26-55. See also L. KALMAN, supra note 7, at 1 I1-14.
19. For Llewellyn's interest in German free law jurisprudence, see K. LLEWELLYN, supra note 15, at 2-3, Whitman, Note, Commercial Law and the American Volk: A Note on Llewellyn's German Sources for the Uniform Commercial Code, 97 YALE L.J. 156, 166700987).
zo. W. TWINING, supra note 7, at 71.
z 1. See infra ch. 8.
22. Pound, supra note 9, at 709.
23. W. TWINING, supra note 7, at 72.
24. Id.
2 5. Id.
z6. Id. at 73 (quoting an unpublished memo of 1931 in the Karl Llewellyn Papers, Univ. of Chicago).
27. See Pound, Law in Books and Law in Action, 44 A. L. REV. 12 (1910). See also infra text accompanying notes 145-46 and ch. 7, text accompanying note 8.
28. Llewellyn, supra note 8, at 434.
29. Id. at 435 n.3 (emphasis added).
30. Id.
31. Id.
32. Id.
33• Id.
34. See R. POUND, JURISPRUDENCE (5 vols., West 1959).
35. Llewellyn, supra note 8, at 434 (emphasis in the original).
36. See L. KALMAN, supra note 7, at 58-59.
37. See D. WIGDOR, ROSCOE POUND: PHILOSOPHER OF LAW 249-50 (Greenwood Press 1974).
38. Id. at 251.
39. See Hull, Reconstructing the Origins of Realistic Jurisprudence: A Prequel to the Llewellyn-Pound Exchange Over Legal Realism, 1989 DUKE L.J. 1302, 1324.
40. J. FRANK, LAW AND THE MODERN MIND (Brentano 's 1930); Law and the Modern Mind: A Symposium, 31 COLUM. L. REV. 8z (1931).
41. See L. KALMAN, supra note 7, at 24o n.83; W. TWINING, supra note 7, at 77; Hull, supra note 7, at 956-57.
42. None of the publishers of the successive editions of Law and the Modern Mind can locate sales figures for the book.
43. Frank's marginal position meant, among other things, that his name encountered a good deal of resistance when it was mentioned for any academic appointment. Arthur Corbin, for example, was set against Frank's appointment at Yale. He felt that Frank's polemical book marked him as a "propagandist and an agitator rather than a teacher and investigator." Schlegel, Underhill Moore, supra note 7, at 314 n.720 and accompanying text (quoting a letter from Corbin to Members of the Governing Board of the School of Law (February 8, 1935) (Moore Papers, Yale Univ. Library)). According to Kalman, "Corbin, however, opposed a 1935 proposal to appoint Frank not only becauss he thought Law and the Modem Mind revealed Frank to be a 'propagandist and an agitator rather than a teacher and investigator' but also because Frank was an ardent New Dealer and a Jew." L. KALMAN, supra note 7, at 138.
44. In his book on the Second Circuit under Learned Hand's leadership, Marvin Schick comments that ". . . Frank was regarded as perhaps the most critical and abrasive of the legal realists who had vociferously attacked many of the foundations of American jurisprudence." M. SCHICK, LEARNED HAND'S COURT 1o (Johns Hopkins Univ. Press 1970).
45 R. GLENNON, THE ICONOCLAST AS REFORMER: JEROME FRANK'S IMPACT ON AMERICAN LAW 16 (Cornell Univ. Press 1985).
46. Id. at 17.
47. Id. at 20.
48. Id. at 21.
49. J. FRANK, supra note 40, at 14-23.
50. Id. at 19.
51. O. W. HOLMES, The Path of the Law, in COLLECTED LEGAL PAPERS 181 (Harcourt, Brace & Howe 1920).
52. J. FRANK, supra note 40, at 18.
53. Id. at 18-19.
54• See S. AHLSTROM, A RELIGIOUS HISTORY OF THE AMERICAN PEOPLE 767-72 (Yale Univ. Press 1972); J. ROBERTS, DARWINISM AND THE DIVINE IN AMERICA (Univ. of Wiscon= sin Press 1988).
55. See L. LEVINE, DEFENDER OF THE FAITH 324-57 (Oxford Univ. Press 1965). For a different view of Bryan, see G. WILLS, UNDER GOD: RELIGION AND AMERICAN POLITICS (Simon & Schuster 199o).
56. Thurman Wesley Arnold (1891-1969) practiced and taught law in his native Laramie, Wyoming, after graduating from Harvard Law School in 1914. He became dean of West Virginia University Law School in 1927 and joined the faculty of Yale Law School in 1930. While there, he wrote his two most famous works, T. ARNOLD, THE FOLKLORE OF CAPITALISM (Yale Univ. Press 1937) and T. ARNOLD, THE SYMBOLS OF GOVERNMENT (Yale Univ. Press 1935), which established his reputation as an ir
reverent critic of law, society, and economic thought. See also Arnold, Professor Hart's Theology, 73 HARV. L. REV. 1298 (1960); Griswold, The Supreme Court, 1959 Term-Foreword: Of Time and Attitudes-Professor Hart and Judge Arnold, 74 HARV. L. REV. 81 (1960). In 1938 Franklin Roosevelt appointed Arnold assistant attorney general in charge of the antitrust division of the Department of Justice, where he remained until his appointment in 1943 to the U.S. Court of Appeals for the District of Columbia Circuit. He left the bench in 1945 and, with Paul Porter and future Supreme Court Justice Abe Fortas, formed what today is the Washington, D.C., law firm of Arnold & Porter. See generally E. KEARNY, THURMAN ARNOLD, SOCIAL CRITIC (Univ. of New Mexico Press 1970).
57. See J. FRANK, supra note 40, at 53-61. "Bealism is stronger in our profession than Fundamentalism among the clergy," he proclaimed in an "addenda to the second printing." Id. at 397.
58. Id. at 3-13.
59• Id. at 10, 11.
6o. Id. at 10.
61. Id. at 11.
6z. Id. at 10, 19 (emphasis retained).
63. Id. at 219-55.
64. Id. at 228 n.8.
65. Id. at 230.
66. Id. at 252-255.
67. Id. at 253-54.
68. Id. at 255.
69. Id.
70. Id. at 270-77-
71. Id. at 270.
72. Id. at 276.
73. Ackerman, Law and the Modern Mind, 103 DAEDALUS 119, 125 (1974).
74. Schlegel, Underhill Moore, supra note 7, at 314 n.7zo (quoting a letter from Corbin, supra note 43).
75. Llewellyn, Legal Illusion, 31 COLUM. L. REV. 8z, 90 (1931).
76. Adler, Legal Certainty, 31 COLUM. L. REV. 91 (1931).
77. Id. at 107. Years later, Frank "regret[ted]" having used the label "realists." He wrote:
The label enabled some of their critics to bracket the realists as a homogeneous "school," in virtual accord with one another on all or most subjects. This misconception-not certainly the result of any careful reading of their works-led to the specious charge that the "realistic school" embraced fantastically inconsistent ideas. Actually no such "school" existed. In the article mentioned above, I referred to one critic's use of this lumping-together method as follows: "It may be roughly described thus: (1) Jones disagrees with Smith about the tariff. (z) Robinson disagrees with Smith about the virtues of sauerkraut juice. (3) Since both Jones and Robinson disagree with Smith about something, it follows that (a) each disagrees with Smith about everything, and that (b) Jones and Robinson agree with one another about the tariff, the virtues of sauerkraut juice, the League of Nations, the quantity theory of money, vitalism, Bernard Shaw, Proust, Lucky Strikes, Communism, Will Rogers-and everything else. Llewellyn, Green, Cook, Yntema, Oliphant, Hutcheson, Bingham, and Frank in their several ways have expressed disagreement with conventional legal theory. Dickinson therefore assumes (a) that they disagree with that theory for identical reasons; and (b) that they agree with one another on their proposed substitutes for that theory. It is as if he were to assume that all men leaving Chicago at a given instant were going north and were bound for the same town. Dickinson has produced a composite photograph of the writers he is discussing. One sees, so to speak, the hair of Green, the eyebrows of Yntema, the teeth of Cook, the neck of Oliphant, the lips of Llewellyn. . . . The picture is the image of an unreal imaginary creature, of a strange, mis-shapen, infertile, hybrid." J. FRANK, supra note 40, at ix-x. (Preface to sixth printing, 1948)
78. Id.
79. Hull, supra note 7, at 943 n. 153 and accompanying text (quoting a letter from Pound to Llewellyn (March 21, 1931) (Llewellyn Papers)).
8o. Id.
81. Id. at 944.
82. Id. (quoting a letter from Pound to Llewellyn (March 21, 1931) (Pound Papers, Harvard Law School Library).
83. Id. at 945.
84. Id. at 947 (quoting a letter from Frank to Mack (April 27, 1931) (Frank Papers, Yale Univ. Library)).
85. Kalman correctly identifies Cook, Oliphant, Yntema, and Moore as "the most scientific of the realists." See L. KALMAN, supra note 7, at 20. "Their strong ties to the social sciences or physical sciences," she writes, "probably accounted for their rigorous concept of scientific objectivity." Id. at 241 n.85. Purcell similarly describes Oliphant, Cook, and Yntema as among the most scientific realists when he mentions their joint founding of the Institute of Law at Johns Hopkins in 1929. See E. PURCELL, supra note 5, at 80.
Charles E. Clark began his teaching career at Yale in 1919 and followed Robert Maynard Hutchins as dean of the Yale Law School in 1929. As dean, Clark championed empirical social science. See Clark & Trubek, The Creative Role of the Judge: Restraint and Freedom in the Common Law Tradition, 71 YALE L.J. 255 (1961). Indeed, as John Schlegel points out, Clark in his dean's report for the 1929-3o academic year "divided all research into field research and library research, and then showed where his heart was with loving descriptions of the field research and perfunctory treatment of the library research." Schlegel, Yale Experience, supra note 7, at 495. Clark engaged in his own empirical studies on how courts worked, his research resulting in a number of articles and a book written with Harry Shulman, C. CLARK & H. SHULMAN, A STUDY OF LAW ADMINISTRATION IN CONNECTICUT (Yale Univ. Press 1937). Despite his empirical efforts, Clark's methodology has been described as backward when placed in the context of developments in the social sciences. See Schlegel, Yale Experience, supra note 7, at 497. Clark became an important force in the framing of the Federal Rules of Civil Procedure and was appointed by Roosevelt to the Second Circuit, but he retained an interest in empirical research, sitting as chairman of the Committee on Statistics of the Judicial Conference of the United States.
Underhill Moore (1879-1949) taught law at Wisconsin before he began teaching in 1916 at Columbia, where he remained until his move to Yale in 1929. Initially a scholar of negotiable instruments, Moore became one of the most ardent empiricists among the Legal Realists. He announced his conversion to social science, including a strong interest in psychology, with his essay, Moore, The Rational Basis of Legal Institutions, 23 COLUM. L. REV. 609 (1923), and in 1929 co-authored with Theodore Hope a heavily social-scientific study of commercial banking law, Moore & Hope, An Institutional Approach to the Law of Commercial Banking, 38 YALE L.J. 703 (1929). Stories abound about Moore's counting cars on the streets of New Haven, but whether or not those stories are apocryphal, as suggested in Schlegel, Underhill Moore, supra note 7, at 201 n. 17, Moore was clearly an empirical enthusiast. And entering one of the subject areas of the Legal Realists, Moore, according to Purcell, "made the most elaborate attempt to work out a behavioral system for studying and predicting judicial decisions.. . ." E. PURCELL, supra note 5, at 87. For an excellent discussion of Moore's methodological development in the context of Columbia and Yale, see Schlegel, Underhill Moore, supra note 7.
Herman Oliphant, whose career as a legal scholar followed a career as a philologist, taught at the University of Chicago and in 1922 joined the faculty of Columbia Law School, where, among other things, he taught a seminar jointly with James Bonbright of Columbia's Business School. From Columbia he moved to the Johns Hopkins Institute of Law, along with Walter Wheeler Cook and Hessel Yntema. In 1934 he became General Counsel to the Treasury Department. See, e.g., Oliphant & Bordwell, Legal Research in Law Schools, 5 AM. LAW SCH. REv. 293 (1924).
Hessel Yntema, who came to law after a career as a political scientist, obviously had a social science background. See L. KALMAN, supra note 7, at 241 n.85. In addition to attacking the restatement movement and the traditions of legal education, Yntema addressed himself to an analysis of legal research methodology. See, e.g., Yntema, Legal Science and Reform, 34 COLUM L. REV. 207 (1934); Yntema, The Purview of Research in the Administration of Justice, 16 IOWA L. REV. 337 (1931).
William O. Douglas (1898-1980), best known for his strident liberalism on the Supreme Court, was an important figure in the Legal Realist circles of both Columbia, where lie taught from 1925 to 1928 in
close association with Underhill Moore, and Yale, where he taught from 1928 to 1934. Douglas's scholarly and pedagogical specialty was business law, and during the New Deal he was asked to work for the newly founded Securities and Exchange Commission, serving as its chairman from 1936 to 1939. See Clark, Douglas, & Thomas, The Business Failures Project-A Problem in Methodology, 39 YALE L.J. 1013 (193o); Douglas & Thomas, The Business Failures Project-11. An Analysis of Methods of Investigation, 40 YALE L.J. 1034 (1931).
Before turning to a career in law, Walter Wheeler Cook (1873-1943) pursued a career in mathematics and science. See L. KALMAN, supra note 7, at 241 n.85. Once within the legal profession, he began teaching at Columbia in r9o1 and at four other law schools before arriving at Yale in 1916. After a brief stint at Columbia, he returned to Yale in 1922 and stayed there until his move in 1928 to John Hopkins, where he spearheaded the new Johns Hopkins Institute of Law, which he conceived as a pure research institute rather than a teaching faculty.
86. See L. KALMAN, supra note 7, at 97, 205, 212-15; Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 STAN. L. REV. 575 (1984); A. COULDNER, THE COMING CRISIS OF WESTERN SOCIOLOGY (Basic Books, 1970).
87. See W. TWINING, supra note 7, at 518-523 (quoting K. LLEWELLYN, THE COMMON LAW TRADITION 509-10 (Little Brown 1960)).
88. John Chipman Gray's name has been placed alongside Holmes's in the genealogy of legal realism. See W. FRIEDMANN, LEGAL THEORY 292-93 (5th ed., Columbia Univ. Press 1967); see also E. PURCELL, supra note 5, at 76. Best known for his articulation of the hyper-technical Rule against Perpetuities, Gray taught at Harvard Law School from 1869 to 1913 and concentrated his studies on the law of real property. His realism centered on a belief that the development of legal doctrine was affected by a large range of non-legal factors. See J. C. GRAY, THE NATURE AND SOURCES OF THE LAW (Columbia Univ. Press 1909).
89. Roscoe Pound, who taught as a professor of law at Harvard Law School from 1910 to 1936 and served as its dean from 1917 to 1936, espoused an explicitly sociological jurisprudence and in doing so provided an important precedent for Legal Realism. Of great significance to the development of American Legal Realism was his essay, Pound, The Scope and Purpose of Sociological jurisprudence (pts. 1-3), 24 HARV. L. REV. 591 (1911), 25 HARV. L. REV. 140, 489 (1911-12). Pound's fondness for the social sciences is reflected by his appointment as legal editor of the ENCYCLOPAEDIA OF THE SOCIAL SCIENCES (15 vols., Macmillan 1930-35). On Pound, see D. WICDOR, supra note 37. See also infra ch. 8.
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