9o. Louis D. Brandeis (1856-1941) gained a reputation first in Boston and then nationally as the "people's lawyer" due to his work in areas like insurance law, utilities law, and labor law. In 1916 he was appointed Associate Justice of the Supreme Court by Woodrow Wilson and remained on the Court until 1939. Brandeis's real impact derived from his strong dissenting opinions on an essentially conservative Court, and it was his progressive voice in labor law and regulation cases that made him important to the Legal Realists. For a sense of his social and political orientation, see selected opinions in THE SOCIAL AND ECONOMIC VIEWS OF MR. JUSTICE BRANDEIS (A. Lief ed., Vanguard Press 1930); appropriately, the volume includes an introduction by Charles Beard. Of Brandeis's own publications, see L. BRANDEIS, BUSINESS-A PROFESSION (Small, Maynard 1914); L. BRANDEIS, OTHER PEOPLE'S MONEY (Frederick A. Stokes 1914). On Brandeis, see A. T. MASON, BRANDEIS: A FREE MAN'S LIFE (Viking 1946); P. STRUM, LOUIS D. BRANDEIS: JUSTICE FOR THE PEOPLE (Harvard Univ. Press 1984); R. BURT, Two JEWISH JUSTICES: OUTCASTS IN THE PROMISED LAND (Univ. of Calif. Press 1988); M. UROFSY, LOUIS D. BRANDEIS AND THE PROGRESSIVE TRADITION (Little, Brown 1981); Jaffe, Was Brandeis an Activist? The Search for Intermediate Premises, 8o HARV. L. REV. 986 (1967). See also the discussion of Brandeis supra ch. 5.
91. In his jurisprudence, Benjamin N. Cardozo (1870-1938) was openly sensitive to the transformation of American social and cultural norms. See G. E. WHITE, THE AMERICAN JUDICIAL TRADITION 259-60 (expanded ed., Oxford Univ. Press 1988). Much more than his tenure on the Supreme Court, his years on the New York Court of Appeals (19141932) and as its chief judge (1927-1932) allowed him to make an important impact on the development of private law doctrine. See G. E. WHITE, TORT LAW IN AMERICA: AN INTEL LECTUAL HISTORY 114-38 (Oxford Univ. Press 1980) (hereafter G. E. WHITE, TORT LAW]. His writings especially B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (Yale Univ. Press 1921), establish his carefully balanced but ultimately sociological view of how judges should go about their business. See Kaufman, Mr. Justice Cardozo, in MR. JUSTICE 250 (A. Dunham & P. Kurland rev. ed., Univ. of Chicago Press 1964). See the discussion of Cardozo, infra text accompanying notes 151-177.
92. Wesley N. Hohfeld (1879-1918) taught at Stanford Law School from 1905 to 1914 and at Yale until his death in 1918. He is most important for his effort to set out the structural relationships and differences among rights, privileges, duties, powers, immunities, disabilities, no-rights, and liabilities. As formalistic and abstract as his analysis might seem, it helped cut through some of the legal mythologies of his contemporaries. See Hohfeld's posthumous collection of essays, W. HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED IN JUDICIAL REASONING (W. Cook ed., Yale Univ. Press 1919). On Hohfeld, see Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1g8z Wis. L. REV. 975. See also the discussion of Hohfeld supra ch. 4. and ch. 5 and infra ch. 7.
93. Learned Hand (1872-1961) sat on the Federal District Court for the Southern District of New York from 1909 to 1924, and thereafter until his death sat on the Second Circuit-the fabled court that under his guidance as chief judge (1939-51) was often compared favorably to the Supreme Court in intellectual power and legal sophistication. Along with Cardozo, Learned Hand was placed by Llewellyn in the "grand style" tradition of jurisprudence, that of Marshall, Kent, and Mansfield, which was more open to policy and purpose than was strict formalism, See W. TWINING, supra note 7, at z1o (citing K. LLEWELLYN, supra note 87). See the discussion of Hand infra ch. 9.
94. Harlan Fiske Stone served as dean of Columbia Law School from 1910 to 1923, U. S. Attorney General from 1024 to 1925, when he was appointed to the Supreme Court, and as chief justice from 1941 to 1946. Although Stone expressed initial opposition to the importation of social thought and engineering into law, by the 19206 he had become convinced not only of the evolutionary character of the judicial process but also of the importance of social values to it. In his essay "Some Aspects of the Problem of Law Simplification," Stone ventured, "Sociological jurisprudence, rightly understood, ought to give a new inspiration and a new trend to legal development.. . ." Stone, Some Aspects of the Problem of Law Simplification, 23. COLUM. L. REV. 319, 328 (1923).
95. This group of economists, who founded the American Economics Association (AEA) in 1885, attempted to revolutionize their discipline by replacing the reigning orthodoxy of their profession with a reform-oriented economic science. Richard Ely and the other economists at the first meeting of the AEA should be seen within the context of turn-of-thecentury reform and progressivism. E. GOLDMAN, RENDEZVOUS WITH DESTINY 112-117 (Knopf 1952). On the development of professional social science in America, see D. Ross, ORIGINS OF AMERICAN SOCIAL SCIENCE (Cambridge Univ. Press 1990); M. FURNER, ADVOCACY AND OBJECTIVITY: A CRISIS IN THE PROFESSIONALIZATION OF AMERICAN SOCIAL SCIENCE, 18651905 (Univ. Press of Kentucky 1975); T. HASKELL, THE EMERGENCE OF PROFESSIONAL SOCIAL SCIENCE (Univ. of Illinois Press 1977).
96. Richard T. Ely (1854-1943) and John R. Commons (1862-1945) were reformoriented economists whose work focused largely on questions of law and public policy. Merle Curti mentions both Commons and Ely in his discussion of the "democratic conception of the scholar's role." M. CURTI, THE GROWTH OF AMERICAN THOUGHT 575-76 (3d ed., Harper & Row 1964). Richard T. Ely, who taught economics at Johns Hopkins, Wisconsin, and Northwestern, was instrumental in the founding of the AEA, which, as mentioned above, began as a Young Turk attack on orthodox economics. Ely's criticism of classical economics and its political implications is embodied in his monograph, R. ELY, THE PAST AND THE PRESENT OF POLITICAL ECONOMY (Johns Hopkins Univ. 1884). In the essay, Ely not only attacked the prevailing economic model for its conservatism but proposed a new model for economic thought. Ely's political perspective may be seen in his close ties to the late-nineteenth-century Christian Socialist movement and his concern for American labor and the American consumer. See J. EVERETT, RELIGION IN ECONOMICS 75-98 (King's Crown Press 1946); R. HOFSCADER, SOCIAL DARWINISM IN AMERICAN THOUGHT 146-47; (rev. ed., Beacon Press 1955); B. RADER, THE ACADEMIC MIND AND REFORM: THE INFLUENCE OF RICHARD T. ELY IN AMERICAN LIFE (Univ. of Kentucky Press 1966).
Like Ely, John R. Commons (1862-1945), who taught political economy at Wesleyan, Oberlin, Syracuse, Indiana, and Wisconsin, drew heavily from disciplines outside economics and addressed a number of practical social questions. Very much the reformer, Commons served as president of the National Consumer's League from 1923 to 1935. Among his most influential books are J. COMMONS, LEGAL FOUNDATIONS OF CAPITALISM (Macmillan 1924) and J. COMMONS, INSTITUTIONAL ECONOMICS (Macmillan 1934). The Legal Realist interest in Commons is evident, for example, in Llewellyn, The Effect of Legal Institutions upon Economics 15 AM. ECON. REV. 665 (1925); there Llewellyn singled out Commons's Legal Foundations of Capitalism as a model of symbiosis between law and economics.
97. Gerard Henderson wrote THE POSITION OF FOREIGN CORPORATIONS IN AMERICAN CONSTITUTIONAL LAW (Harvard Univ. Press 1918) while working as a lawyer for the federal government; on Robert Lee Hale see infra ch. 7 note 12. James Bonbright, professor at the Columbia Business School, co-taught a seminar with Oliphant, a course that was visited by both Moore and Hale. See Schlegel, Underhill Moore, supra note 7, at 208-09.
98. A. BERLE & G. MEANS, THE MODERN CORPORATION AND PRIVATE PROPERTY (Macmillan 1932). See J. SCHWARZ, LIBERAL: ADOLF A. BERLE AND THE VISION OF AN AMERICAN ERA 5o-68 (Free Press 1987).
99. The editor-in-chief was Edwin R. A. Seligman, professor of political economy at Columbia. He was assisted by.Alvin Johnson and Max Lerner of the New School for Social Research. Roscoe Pound, the legal editor of the Encyclopaedia of the Social Sciences, chose a number of Legal Realists to contribute articles, including Harold Laski, Karl Llewellyn, Walter Wheeler Cook, Harold Lasswell, Max Radin, and Walton H. Hamilton.
loo. Llewellyn admired Dewey but saw that in the study of legal processes "his potential had not been exploited. Llewellyn's private ambition, as he once confessed in a lecture, was to perform the role of a Dewey
in jurisprudence, trying to do for law what the great man had done for other subjects." W. TWINING, supra note 7, at 422 n. 130.
ioi. See D. HOLLINGER, The Problem of Pragmatism in American History, in IN THE AMERICAN PROVINCE 23 (Indiana Univ. Press 1985); J. KLOPPENBERG, supra note 4; B. KUKLICK, THE RISE OF AMERICAN PHILOSOPHY: CAMBRIDGE, MASSACHUSETTS, 186o-1930 (Yale Univ. Press 1977); B. KUKLICK, CHURCHMEN AND PHILOSOPHERS: FROM JONATHAN EDWARDS TO JOHN DEWEY 241-53 (Yale Univ. Press 1985); C. WEST, THE AMERICAN EVASION OF PHILOSOPHY (Univ. of Wisconsin Press 1989); M. WHITE, SOCIAL THOUGHT IN AMERICA: THE REVOLT AGAINST FORMALISM (Viking 1949); R. RORTY, CONSEQUENCES OF PRAGMATISM (Univ. of Minnesota Press 1982).
102. W. TWINING, supra note 7, 521-22.
103. Bohlen appeared on the longer, subsequent list that Llewelyn sent to Pound. See Hull, supra note 7, at 967-69.
104. Leon Green, who taught at Texas and Yale before becoming the dean of Northwestern Law School in 1929, clearly deserved his place on Llewellyn's list. As G. Edward White writes, Green "produced the most original and revisionist torts scholarship of the Realist years," although White goes on to say with Charles Gregory that many of the Legal Realists did not appreciate hi1❑ as much as they should have. C. E. WHITE, TORT LAW, supra note 91, at 76. If Green was not sympathetic to doctrinal distinctions within the law of torts, he did important revisionist work within specific doctrinal areas, such as his essay, Green, The Duty Problem in Negligence Cases (pts. 1 & z), 28 COLUM. L. REV. 1014 (1928), 29 COLUM. L. REV. 255 (1929), and addressed broader issues such as in his discussion of the role of judges and juries in torts ca; :s in L. GREEN, JUDGE AND JURY (Vernon 1930). In addition, Green produced what might be described as the first Realist casebook in torts, L. GREEN, THE JUDICIAL PROCESS IN TORT CASES (West 1931), and actively supported the New Deal. See Green, Case for the Sit-Down Strike, 9o NEW REPUBLIC 199 (Mar. 24, 1937); Green, Unpacking the Court, 9o NEW REPUBLIC 67 (Feb. 24, 1937). The Texas Law Review devoted the entire February 1978 issue to Green. For a careful analysis of Green's relationship to Legal Realism, see Robertson, The Legal Philosophy of Leon Green, 56 TEx. L. REV. 393 (1978). For a discussion of Green's major doctrinal contribution, his critique of objective causation, see supra ch. 2.
Francis Bohlen (1868-1947) taught at Harvard and the University of Pennsylvania, and served as reporter of the Restatement of Torts in 1923. Although Bohlen remained ambivalent about some aspects of Legal Realism, White correctly gives him an important place as a transitional figure in his narrative of the "impact of realism on tort law." See G. E. WHITE, TORT LAW, supra note 91, at 78-87. Still wedded to the doctrinal division of the law of torts, Bohlen's work in torts represented an important break from formalism and an understanding of the significance of social developments. His three-part essay on Rylands v. Fletcher, L.R. 3 H.L. 330 (1868), is an effort to offer an economic interpretation of the law of torts. Bohlen, The Rule in Rylands v.Fletcher (pts. 1-3), 59 U. PA. L. REV. 298, 373, 423 (1911). See also Pound, The Economic Interpretation and the Law of Torts, 53 HARV. L. REV. 365 (194o). In a 1935 essay, Bohlen addressed himself explicitly to the growing Legal Realist movement and asserts that "there is great gain in the fact that in many of our principal law schools the reality of what the courts are doing is being brought to the attention of students." He went on to venture that perhaps these students as future judges will "tell the real reasons for their decisions and not conceal them beneath legalistic and often meaningless phrases." Bohlen, Old Phrases and New Facts, 83 U. PA. L. REV. 305, 313 (1935). See also F. BOHLEN, CASES ON THE LAW OF TORTS (2 vols., Bobbs-Merrill 1915). On Bohlen, see Lewis, Francis Hermann Bohlen, 91 U. PA. L. REV. 377 (1943).
Jeremiah Smith, who in 1893 revised Ames's original torts casebook of 1874, was, for the most part, well within the Harvard formalist tradition established by Ames. In his torts scholarship, Smith emphasized the fault aspect of torts and agreed with the contemporary classification system of the law of tort. Smith's connection to the Legal Realists comes rather from his article on workers' compensation. See Smith, Sequel to Workmen's Compensation Acts (pts. 1 & 2), 27 HARV. L. REV. 235, 344 (1914). See also Smith, Legal Cause in Actions of Tort (pts. 1-3), 25 HARV. L. REV. 103, 223, 303 (1911-12); Smith, Tort and Absolute Liability-Suggested Changes in Classificatic:i (pts. 1-3), 3o HARV. L. REV. 241, 319, 409 (1917).
Although Fleming James came to Yale too late to be enrolled on Llewellyn's list, he became an important part of Legal Realism. In 1942 he collaborated with Harry Shulman on a casebook in torts that was unambiguously Legal Realist in conception. See H. SHUL MAN AND F. JAMES, CASES AND MATERIALS ON THE LAW OF TORTS (Foundation Press 1942). As White notes, their foreword declared that law was involved "not so much with rule or doctrine as with problems in human relations." Id. at vii-viii, quoted in G. E. WHITE, TORT LAW, supra note 91, at 89.
Nathan Isaacs (1886-1941) taught at Harvard, Columbia, and Yale. See Isaacs, Fault and Liability, 31 HARV. L. REV. 954 (1918); Isaacs, "The Law" and the Law of Change (pts. 1 & 2), 65 U. PA. L. REV. 665, 748 (1917); Isaacs, The Standardizing of Contracts, 27 YALE L.J. 34 (1917).
In the British context, Harold Laski (1893-195o) was one of the most important intellectual forces in the inter-war period, serving on the Executive Committee of the Fabian Society from 1921 to 1936 and then on the Executive Committee of the Labour Party from 1936 to 1949, as party chairman from 1945-46. In his position at the London School of Economics, Laski provided socialist critiques of liberalism. But Laski is important as well in the story of American Legal Realism due to his work while teaching at Harvard from 1916 to 1920 and his close association with Holmes and Brandeis. Among Laski's American law review essays, see Laski, The Basis of Vicarious Liability, 26 YALE L.J. 105 (1916); Laski, Judicial Review of Social Policy in England, 39 HARV. L. REV. 832 (1926); Laski, The Theory of Popular Sovereignty, 17 MICH. L. REV. 201 (1919).
105. See Cook, Agency by Estoppel, 5 COLUM. L. REV. 36 (1905); Seavey, Negligence-Subjective or Objective?, 41 HARV. L. REV. 1 (1927); Seavey, The Rationale of Agency, 29 YALE L.J. 859 (1920). Seavey ended his article on negligence with these thoughts:
Liability for conduct follows, usually belatedly, popular conceptions of justice. In primitive law it was "just" that the burden of loss should be shifted only where the cause of the harm was a knave or a fool. With a mechanistic philosophy as to human motives and a socialistic viewpoint as to the function of the state, we may return to the original result of liability for all injurious conduct, or conceivably have an absence of liability for any conduct, with the burden of loss shifted either to groups of persons or to the entire community. The lawyer cannot determine that our rules of liability for negligence are either just or unjust, unless he has first discovered what the community desires (which determines justice for the time and place), and whether the rules are adapted to satisfying those desires (which I assume to be the end of law).
Seavey, Negligence, supra, at 28.
1o6. See Arnold, The Restatement of the Law of Trusts, 31 COLUM. L. REV. 800 (1931); Clark, The Restatement of the Law of Contracts, 42 YALE L. J. 643 (1933); Corbin, The Restatement of the Common Law by the American Law Institute, 15 IOWA L. REV. 19 (1929); Green, The Torts Restatement, 29 ILL. L. REV. 582 (1935); Lorenzen & Heilman, The Restatement of the Conflict of Laws, 83 U. PA. L. REV. 555 (1935); Vance, The Restatement of the Law of Property, 86 U. PA. L. REV. 173 (1937). See generally L. FRIEDMAN, A HISTORY OF AMERICAN LAW 582 (2d ed., Simon & Schuster 1985); Gilmore, supra note 7, at 1044-45. C. Crystal, Codification and the Rise of the Restatement Movement, 42 WASH. L. REV. 239 (1979); Hull, Restatement and Reform: A New Perspective on the Origins of the American Law Institute, 8 LAW & HIST. REV. 55 (1990).
107. See RESTATEMENT OF THE LAW OF AGENCY, (2 vols., American Law Institute 1933); RESTATEMENT OF THE LAW OF CONFLICT OF LAWS (American Law Institute 1934); RESTATEMENT OF THE LAW OF CONTRACTS (2 vols., American Law Institute 1932); RESTATEMENT OF THE LAW OF TORTS (4 vols., American Law Institute 1934-39).
1o8.
See Dawson, Economic Duress-An Essay in Perspective, 45 MICH. L. REV. 253 (1947); Fuller & Perdue, The Reliance Interest in Contract Damages (pts. 1 & 2), 46 YALE L. J. 52, 373 (1936-37). See also C. GILMORE, THE DEATH OF CONTRACT (Ohio State Univ. Press 1974).
1oq. See Cavers, A Critique of the Choice-of-Law Problem, 47 HARV. L. REV. 173 (1933). Though the Restatement was published in 1934, Cavers knew of the ALI's work. See id. at 208. Compare Cook, The Logical and Legal Bases of the Conflict of Laws, 33 YALE L. J. 457 (1924).
110. Fuller & Perdue, supra note 1o8.
111. Norris-LaGuardia Act, ch. 90, 47 Stat. 70 (1932).
112. See F. FRANKFURTER & N. GREENE, THE LABOR INJUNCTION 205-220 (Macmillan 1930).
113. See W. HOHFELD, supra note 92; Cook, The Privileges of Labor Unions in the Struggle for Life, 27 YALE L. J. 779 (1918). See the discussion supra ch. 5. In Truax v. Corrigan, 257 U.S. 312 (1921), the Supreme Court struck down an Arizona antiinjunction law on equal protection, not due process, grounds, as had some previous state cases. See, e.g., Bogni v. Perotti, 224 Mass. 152 (1916). Justice Brandeis's dissent in Truax is an important articulation of the rights-remedy position. In retreating to equal protection, even Chief Justice Taft's majority opinion concedes the power of the legislature to eliminate the injunctive remedy, if only it is extended equally to non-labor injunctions as well. The logical connection between rights and remedies was thus severed.
114. See Klare, Contracts Jurisprudence and the First-Year Casebook (book review), 54 N.Y.U. L. REV. 876, 88z (1979).
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