Monday, October 15, 2012
A potted history of American legal education and scholarship in the 20th-century, with special reference to why there is no longer a scholarly Wissenschaft in law
MOVING TO FRTON FROM JULY 11, 2012: THIS APPEARED IN THE DOG DAYS OF SUMMER WHEN SOME READERS WHO MIGHT FIND IT INTERESTING MAY HAVE MISSED IT
Christopher Columbus Langdell, Dean of the Harvard Law School in the late 19th-century, set the paradigm for what law schools and legal scholars should do, a paradigm that lasted for nearly a century, until Richard Posner upset it in the 1970s. That gloss perhaps exaggerates the influence of these two individuals, but only slightly.
In the 19th-century, the idea arose, beginning in Germany of course, that a subject fit for and requiring university study should be a Wissenschaft, a "science," though the Anglophone connotation of natural science is misleading. A Wissenschaft was a body of knowledge characterized by distinctive methods and tools that, when deployed correctly, would lend epistemic credence to the results. If law was to be a subject for university study, then it had to be a Wissenschaft, an idea shared by Langdell and the Legal Realists, and many others.
For Langdell, the body of knowledge constituting legal knowledge arose from a careful study of the opinions of the courts as they analyzed legal problems--not a crazy view for a scholar of the common law to have, of course. Carefuly study of these opinions could elict the general principles and rules of law that explained the particular opinions. The task of legal scholars was to articulate these general principles, and the obligation of the law students was to learn them, so that they could then understand what the courts will do.
The American Legal Realists interrupted this pedagogical and scholarly narrative in the early 20th-century, noticing that the doctrinal categories the Langdellian scholar latched on to were often pitched at a level of abstraction from the particular problems the courts were confronting that actually obscured what was really going on. Sensitivity to economic and social context was often necessary to make sense of the decisions; there was no "law of contracts" or "law of torts," per se. As the great Legal Realist Leon Green's torts casebook of the 1930s suggested, what there really was were principles of tort law for railroads, for hospitals, for factories, and so on. The American Realists accepted Langdell's ambition to make the study of law scientific; they just thought Langdell's science was shoddy, and their view prevailed.
The merged Langdell/Realist paradigm became dominant for a good half-century. To take a prominent example of how the agenda became mainstreamed: my late Texas colleague Charles Alan Wright understood himself, correctly, to be a Legal Realist, and his renowned treatise on Federal Practice and Procedure reflects that self-understanding: Wright and his colleagues carefully parsed the opinions of the courts, in order to elicit the situation-sensitive rules the courts actually were deploying in deciding procedural issues. The treatise writer continued to be the pinnacle of academic excellence for another generation after WWII.
Richard Posner is, like Langdell, the other decisive figure in the history of American legal scholarship and education. He did not invent economic analysis of law--such credit goes, if it goes to any one person, to his Chicago colleagues Ronald Coase and Aaron Director--but he had the intellectual energy and ingenuity to show in the course of the 1970s how the economic way of thinking could both explain what the courts were really doing and upset what almost all the scholars were saying about it. The economic approach started from a simple assumption: individuals are instrumentally rational in trying to get what they want. Their interactions with the law, so the economic story goes, are no different. If the law imposes penalties on certain conduct, they will adjust their behavior accordingly, in order to get what they really want, even if the law prohibits it or burdens the pursuit of it, unless, of course, the burdens become too costly. Those simple "rational choice" assumptions had radical consequences, or so Posner and Posnerians argued. And here they pierced the vulnerable underbelly of the Realist attack on Langdell's doctrinalism. For the Realists operated with "common sense" assumptions about how law would influence behavior, a "common sense" that hadn't really taken account of how actors in market systems tend to think, namely, in terms of the self-centered costs and benefits of different courses of conduct. The greatest success of economic analysis was, of course, in those commercial domains where actors really did think the way the economic analyst supposed.
The victory of Realism and Posnerian Realism means, of course, there is no science of law--no distinctively legal methods or tools--beyond the ones Langdell envisioned. But that's the Wissenschaft law schools have been teaching for a century now, and, arguably, students master it within two years, at least when well-taught. Once a student has learned the Langedellian Wissenschaft, what's needed is something else, at least for a post-Realist, post-Posnerian legal scholar: history, economics, political science, sociology, and so on. That's why the idea of a PhD in law is so bizarre: it's either Langdellian Wissenschaft fetishized (Legal Realism and Posner be damned!) or its history-lite, economics-lite, political science-lite and so on. (The worry is that the latter is really what Yale's new "PhD in law" will be.)
In the UK, Langdellian Wissenschaft still reigns supreme--hence the PhD in law there really is a graduate degree, one that complements the undergraduate training students have had in "dcotrinal" analysis. (There are exceptions, of course, in the UK for those who do a doctorate in jurisprudence or legal history, which are well-developed specialties, which operate in tandem with, not as lite-versions of, the cognate Wissenschaften.) But as American law professors often jest, if you want to know what law school was like in the 1950s, spend a term at a leading English law school. Maybe doctrine really does explain the behavior of courts in the UK, and maybe English citizens are even more infrequently maximizers of their satisfactions than their American cousins. But the Langdellian legal Wissenschaft exhausts its intellectual utility within two years of JD study, and that is, as far as I can tell, no longer controversial on this side of the Atlantic. So what could a PhD in law really be about? Especially at Yale, where even the craft of the Langdellian paradigm has largely vanished, it is especially puzzling. Although Yale has smart historians, psychologists, economists, and philosophers on the faculty, the Law School clearly does not have the resources to mount a serious "law-and-X" Wissenschaft in any of these fields, certainly not when compared to a JD/PhD in history, psychology, economics etc. The real worry about Yale's PhD in Law is that it's going to be a PhD imprimatur on even higher-level post-Realist dilettantism. Only if law schools generally acquiesce to this will it be successful.