Friday, May 15, 2009

The Most Important Legal Thinkers in American Law of the Past Century

UPDATE:  Comments are now open (sorry about that).

With 180 votes cast, here are the top 25:

1. Oliver Wendell Holmes, Jr.  (Condorcet winner: wins contests with all other choices)
2. Richard Posner  loses to Oliver Wendell Holmes, Jr. by 63–47
3. Ronald Dworkin  loses to Oliver Wendell Holmes, Jr. by 67–46, loses to Richard Posner by 67–51
4. Ronald Coase  loses to Oliver Wendell Holmes, Jr. by 61–40, loses to Ronald Dworkin by 54–53
5. Benjamin Cardozo  loses to Oliver Wendell Holmes, Jr. by 65–29, loses to Ronald Coase by 50–48
6. Louis D. Brandeis  loses to Oliver Wendell Holmes, Jr. by 69–22, loses to Benjamin Cardozo by 40–39
7. Karl N. Llewellyn  loses to Oliver Wendell Holmes, Jr. by 65–29, loses to Louis D. Brandeis by 46–44
8. Guido Calabresi  loses to Oliver Wendell Holmes, Jr. by 75–31, loses to Karl N. Llewellyn by 57–39
9. John Hart Ely  loses to Oliver Wendell Holmes, Jr. by 68–22, loses to Guido Calabresi by 56–38
10. Antonin Scalia  loses to Oliver Wendell Holmes, Jr. by 76–22, loses to John Hart Ely by 48–41
11. Alexander Bickel  loses to Oliver Wendell Holmes, Jr. by 71–17, loses to Antonin Scalia by 48–37
12. Cass R. Sunstein  loses to Oliver Wendell Holmes, Jr. by 79–18, loses to Alexander Bickel by 46–40
13. Richard Epstein  loses to Oliver Wendell Holmes, Jr. by 78–23, loses to Cass R. Sunstein by 47–42
14. William J. Brennan, Jr.  loses to Oliver Wendell Holmes, Jr. by 75–21, loses to Richard Epstein by 44–43
15. Henry M. Hart, Jr.  loses to Oliver Wendell Holmes, Jr. by 77–13, loses to William J. Brennan, Jr. by 46–33
16. Lon Fuller  loses to Oliver Wendell Holmes, Jr. by 72–20, loses to William J. Brennan, Jr. by 44–35
17. Laurence H. Tribe  loses to Oliver Wendell Holmes, Jr. by 76–18, loses to Lon Fuller by 46–34
18. Catharine A. MacKinnon  loses to Oliver Wendell Holmes, Jr. by 76–19, loses to Laurence H. Tribe by 44–37
19. Felix Frankfurter  loses to Oliver Wendell Holmes, Jr. by 81–11, loses to Lon Fuller by 41–28
20. Roscoe Pound  loses to Oliver Wendell Holmes, Jr. by 75–11, loses to Felix Frankfurter by 34–33
21. Bruce Ackerman  loses to Oliver Wendell Holmes, Jr. by 79–18, loses to Catharine A. MacKinnon by 44–39
22. Herbert Wechsler  loses to Oliver Wendell Holmes, Jr. by 75–12, loses to Bruce Ackerman by 35–33
23. Frank Easterbrook  loses to Oliver Wendell Holmes, Jr. by 80–14, loses to Herbert Wechsler by 37–28
24. John Henry Wigmore  loses to Oliver Wendell Holmes, Jr. by 77–9, loses to Frank Easterbrook by 36–30
25. John Marshall Harlan II  loses to Oliver Wendell Holmes, Jr. by 77–11, loses to John Henry Wigmore by 29–26

Martha Nussbaum and Robert Bork were very close to making the top 25 as well.

What to say about the results?  Would Hugo Black and Learned Hand--wrongly omitted from the original list of 75 choices--have made the top 25?  Probably.  I am personally surprised MacKinnon was not higher, so too Llewelly and Fuller and Wechsler.  I was surprised by Ely's strong showing:  Demoracy and Distrust was a very fine bit of constitutional theory, but what else is there?  The top three seem right, including Dworkin, whose jurisprudential views may be a tissue of confusions and misrepresentations, but whose vision of constitutional adjudication in particular has been hugely influential on legal thought (if not on U.S. courts).  (I have yet to find a constitutional theorist who takes him- or herself to be "influenced" by Dworkin who realizes that nothing in the bits and pieces of Dworkin they find important is at issue in Dworkin's purported dispute with legal positivism.  Fortunately for Dworkin's influence, jurisprudential ignorance is deep and widespread!) 

Here are the three law faculties that can claim the most scholars from the above list as faculty members for some significant portion of time:

University of Chicago (Posner, Coase, Llewellyn, Scalia, Sunstein, Epstein, Easterbrook, Nussbaum)

Harvard University (Ely, Sunstein [started last year, now on leave], Hart, Fuller, Tribe, Frankfurter, Pound)

Yale University (Dworkin, Calabresi, Ely, Bickel, Ackerman, Bork)

Columbia University (Llewellyn, Wechsler)

New York University (Dworkin, and Epstein starts part-time in 2010)

Thoughts from readers?  Signed comments only:   full name and e-mail address.  Post only once, comments may take awhile to appear.

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One suspects Hand would Handily bump Scalia out of the top 10 - as agreeable a development as could be wished.

Posted by: Robert Hockett | May 15, 2009 11:11:08 AM

I'm heartened to see that several thinkers who devoted a non-trivial amount of their time and writing to private law -- even, dare I say, contract and commercial law -- issues fared well. I imagined that the exclusion of Arthur Corbin, Allan Farnsworth, and Samuel Williston (among other 20th century luminaries) from the list of candidates would presage yet another flogging of contract and commercial law scholarship.

Posted by: Keith Rowley | May 15, 2009 3:28:33 PM

Dear Professor Leiter:

The poll is now closed, but I looked at the voting results and was shocked - shocked - to see that neither Charles Hamilton Houston nor Thurgood Marshall were included on the list. Charles Hamilton Houston created the strategy that led to Brown v. Board of Education. That strategy has proved so successful that now those on the opposite side - such as the Center for Individual Rights - are using the same tactics. Charles Hamilton Houston was a legal mastermind who plotted a course that changed this entire nation forever. Without Brown, this nation would not be the same. Period. Without Houston, there'd be no Brown. If this doesn't qualify one for inclusion on this list, I don't know what does. So, why was he not on the list?

Thurgood Marshall was the lead lawyer on the Brown case - argued after Houston's death - and only lost two of the cases he argued before the Court as an attorney. A brilliant rhetorictician, he brought depth to all his opinions and dissents. If Brennan is on this list, Marshall has to be as well.

These are my initial thoughts, quite possibily not as articulated as I would like, but this strikes me as the most glaring of omissions.

Posted by: Nareissa Smith | May 16, 2009 5:59:26 AM

I would have thought it obvious (but I guess not) that a list of the most important lawyers or "legal strategists" would have looked quite different than the list of innovators in legal thought and theory people were actually voting on. Perhaps there is an argument that Brennan doesn't belong on the list (indeed, one correspondent made that point), becuase he is more like Marshall and Warren as a jurist than he is like Holmes or Brandeis or Cardozo.

Posted by: Brian Leiter | May 16, 2009 8:42:04 AM

I would add F.A. Hayek, Garrett Hardin, John Nash, Frank Knight, Milton Friedman, Gary Becker, Amartya Sen, John Rawls, Robert Nozick, Akhil Amar, William Eskridge and Michael Sandel.

Posted by: Uzair Kayani | May 17, 2009 6:10:54 AM

I think it would be a poll for a different day that might look at scholars from other disciplines whose ideas have been influential within American law; the idea here was to focus on those whose primary intellectual or institutional home is or was law.

Posted by: Brian Leiter | May 17, 2009 8:09:06 AM

The poll also missed Charles Fried. As with any of these Condorcet polls, one or two serious omissions (or a handful of smaller ones) throws the end results into doubt.

Posted by: AndyK | May 17, 2009 9:38:20 AM

Fried is an arguable case, though it seems incredible to suppose that he would likely upset the 'top 20' results the way Hand or Black might.

Posted by: Brian Leiter | May 17, 2009 10:35:30 AM

I would add Roger J. Traynor, Justice and Chief Justice of the California Supreme Court, legal scholar, and law professor at both Boalt Hall and UC Hastings College of the Law.

Boalt Hall, Justice Traynor’s alma mater, has done little to promote his legacy. But Hastings did publish a selection of Justice Traynor’s writings in The Traynor Reader (1987). Most of the writings in that book originated in speeches that Justice Traynor had presented to various legal groups throughout the United States. Two were from speeches given in the United Kingdom.

I would suggest that Justice Traynor ranks with Justice Cardozo as one of the foremost state court justices of the twentieth century. Recall that Justice Cardozo contributed to the law mainly through his opinions on the New York Court of Appeals.

Posted by: John Judge | May 18, 2009 3:23:45 PM

I believe the poll should have included Felix Cohen and Robert Hale. Cohen made no original contribution to American legal thought but some of his articles are regarded as among the best representatives of the legal realist critique of the indeterminacy of legal reasons. I personally think that much of what Cohen wrote is philosophically infantile and fallacious, but his influence is undeniable. Certainly he deserves to be included in a poll which includes, among others, Joseph Beale and Owen Fiss!

Hale’s case is stronger. I find him one of the most brilliantly original and significant American legal thinkers ever. He might have been an economist of the institutionalist school more than a jurist ( I doubt it), but he taught at Columbia Law School for most of his career and much of what he wrote shows a mastery of legal doctrine and a talent for legal argument not often seen in much law review material. Aren’t Hale’s pieces on duress in contracts, on prima facie torts, or on takings legal articles? Or his book “Freedom through Law”? I think so. In any case, he was no less a lawyer than Coase; he actually had a law degree and taught legal courses, something that, as far as I know, Coase never did. (I’m not saying Coase should not have been included; his importance for legal thought is obvious). His omission is serious because I believe he would’ve made the top 20. I mean, Epstein gained enough votes to be ranked 13 and there’s in Hale’s work more than enough to undermine much of what Epstein has been defending over the years…

Posted by: Goncalo | May 20, 2009 7:00:33 AM

What about Jerome Frank? Maybe if Sotomayor is confirmed, that will change, as she apparently found him pretty important. Regardless, only Llewellyn rivals him (and, to be fair, beats him these days) as the most significant figure associated with Legal Realism, which itself was probably the most significant movement in legal thought in the 20th Century. But perhaps his absence from this list is understandable since no one really seems to understand (or care) what Frank really was concerned with, namely figuring out how to cultivate and train better lawyers and judges.

Posted by: Charles Barzun | May 29, 2009 2:23:31 PM

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