Vol. 5 No. 12 (December, 1995) pp. 281-85
AMERICAN LEGAL REALISM & EMPIRICAL SOCIAL SCIENCE by John
Henry Schlegel. Chapel Hill & London: University of North
Carolina Press, 1995. Cloth $55.00.
Reviewed by June Starr, Indiana University School of Law,
Indianapolis.
In AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE the legal
historian and law professor, John Henry Schlegel reveals early
attempts in the 1920s and 1930s to introduce science into the
research agendas and curricula of American law schools. In doing
so he provides empirical law researchers a longer intellectual
history suggesting, in additional to Willard Hurst and Harry
Kalven, some new heros -- Charles E. Clark, Walter Wheeler Cook,
and Underhill Moore. The book focuses on an explanation of why
law did not become a scientific study in the twentieth-century
sense of science, notably as an empirical inquiry into a world
"out there," as did all the other disciplines in
American academic life that formed in the late nineteenth and
early twentieth centuries. The answer? "Law already saw
itself as practicing a science, a "legal science."
During years on either side of the turn of the century the
academic practitioners of legal science passed law off as a
species of empirical study by making the "thoroughly
misleading, but intensely revealing, assertion that the law
library was the law professor's laboratory and by arguing for the
politically neutral, and so objective,' results of the
appropriate juridical method" (p.1).
There has been a mistaken assumption that Legal Realism was
jurisprudence. Schlegel sets the record straight by examining the
empirical work which was central to the lives of several of the
leading Realists -- Thurman Arnold, Charles E. Clark, Walter
Wheeler Cook, William O. Douglas, Underhill Moore, Herman
Oliphant, and Wesley Sturges. The work of the Realists, their
attempts at reform of the law school curricula and their
empirical projects are presented in detail, and are critiqued as
Schlegel shows us that intellectual history must be much more
than a discussion of ideas. Intellectual history must relate to
people and the places where they exchange ideas. He is interested
in the communication among and between scholars, in particular
institutional settings, and how the personalities, institutional
backing and financial support shape the intellectual endeavor.
Thus, part of the narrative which Schlegel relates is how
clusters of individuals worked (or worked badly) together at law
schools in brief periods as certain law professors tried to
develop law and social science inquiry. Schlegel concludes by
telling us that in addition to taking a fresh look at the work of
the Realists, the book is "intended to be a contribution to
intellectual history generally because it attempts to show what
it is to be an intellectual in America in the twentieth
century." The book succeeds at all levels remarkably well.
In part Schlegel wrote the book as a response to the scholars who
view legal "Realism as a jurisprudence or who [do] not
follow through on alternative understandings of Realism." In
contrast Schlegel asserts that the Realists can best be
understood by knowing what their views and their work was about.
Schlegel considers the careers of Cook, Moore, and Powell at
Columbia Law school where they attempt to educate their dean,
Harlan Fiske Stone, regarding their dissatisfactions with
American law and legal education. By 1926 they were undertaking a
huge study of curriculum reform. Meanwhile, the Harvard Law
school had announced an endowment drive, in part to provide for
research professorships. At Yale law school under Dean Swan,
Arthur Corbin, Charles E. Clark, and Cook, who had left Columbia,
were also proposing reforms in legal education. As reform heated
up, Cook moved on to Johns Hopkins University to fund a law
school or a research and graduate teaching institution where he
could continue writing in two areas -- the scientific method and
conflict of laws. As Columbia law school engaged in Deanship
fighting, Hopkins snatched up three individuals -- Oliphant,
Marshall and Yntema -- who, with Cook formed the Institute of
Law, which was active but short-lived (1928-1933). During this
short period of turmoil and uncertainty in funding, a surprising
amount of research was completed. There were four publications
from the Maryland study of divorce litigation; the New York study
produced several articles -- a study of the day calendars, of the
public costs of justice, and an additional study of the English
Kings Bench Masters and English interlocutory practice. From the
Ohio study came a volume of material -- six studies in each of
two years. Some of these studies involved criminal litigation,
divorce litigation, appellate lawsuits, two were on minor trial
courts, and there was a small history of the judicial system of
Ohio from 1787 to 1932. Other articles concerned receiverships,
waiver of jury trial, the public cost of justice, the lower
courts, and finally there were new studies on divorce. Despite
this out burst of energy, the Institute of Law at Johns Hopkins
ultimately failed because of lack of funding.
Throughout the text Schlegel focuses on the empirical research
undertaken by various law professors: Clarke's interest in law
reform and his work at Yale on civil procedure in civil and on
criminal courts. Clarke also conducted empirical research on
losses by, and recoveries of victims of auto accidents. Also at
Yale law school Douglas conducted empirical work on bankruptcy
laws, and he enlisted for awhile two real social scientists, Emma
Corstvet and Dorothy Swaine. We learn of Moore's work on the law
and practice of commercial banking and the behavior of citizens
in response to parking and traffic rules and regulations.
Schlegel's discussion of research is interwoven with the debates,
the struggles, and the ability to attract social scientists to
participate in discussions and projects. As the projects
progressed, there was a growing lack of synergy, the falling
apart of the projects and the dissipating of intellectual energy.
Schlegel tells us of the funding, lots of money but not over a
long time, and what multiple factors caused its withdrawal. The
last chapter tells of quickening activity in law and social
science: the Jury Project at University of Chicago under Harry
Kalven and Hans Zeisel, the activities of the Walter E. Meyer
Research Foundation that funded empirical legal research starting
in the late 1950s, and the work of the Russell Sage Foundation
that funded law and social science programs at Yale Law School,
Northwestern University, University of Denver Law School
University of Wisconsin Law School, and Boalt Hall Law School at
the University of California, Berkeley.
Brooding in the background is the omnipresence of those
traditional legal academics who quietly, but firmly, maintained a
notion of professional role and thus of appropriate activities.
As Cook and Moore leave the tall grass prairie universities where
they started their careers as law professors, they brought back
to the elite eastern law schools deviant notions of what it was
to be a law professor. The traditional law professors were
committed to the understanding that legal education was focused
solely on norms, against which the Realists who were engaged in
empirical research reacted -- indeed, against which the Realists
defined themselves and so defined themselves for us. Seeing that
ground, if only in negative outline, begins to show the contours
of the legal academy then and, realistically, now.
In addition to critiquing the early empirical studies of law,
Schlegel hopes to make the reader experience why legal education
developed as it did, and why social science failed to be
established in law school education. To do this he presents the
intellectual history of the Realists as "ideas and people
hopelessly intermingled" . . . because to his mind
"ideas and people are hopelessly intermingled." He also
presents the "doing and thinking" of the young law
professors engaged in empirical research in the 1920s and 1930s
in which the doing seemed to overwhelm the thinking and, thus, in
which the actual results, the traditional "stuff" of
intellectual history, were far less important than one might
otherwise expect.
The Realists worked essentially at Columbia and Yale law schools,
and at the newly founded Law Institute at John Hopkins
University. The chapter on post-world war II Realists discusses
the Chicago jury study, which was actually a series of projects,
and a number of individual studies funded by the Walter E. Meyer
Research Institute of Law, which have become classics in the Law
and Society field, such as Joel Handler's study of lawyers,
Stewart Macaulay's study of automobile dealers and their
manufacturers, Maurice Rosenberg's study of the pretrial
conference and delay in personal injury litigation, H. Lawrence
Ross's SETTLED OUT OF COURT, and Jerome Skonick's JUSTICE WITHOUT
TRIAL.
The only real success story where empirical research was embraced
by a large number of the faculty was at Wisconsin law school,
where apparently today close to half the faculty are engaged in
empirical research. Willard Hurst's influence there and on legal
history in general has been immense, but we are not told about
his projects, colleagues and students. Likewise, Law Professor
Stanton Wheeler's program in Law and Social Science at Yale law
school, which trained a number of current law and society
researchers, and the Law and Modernization program at Yale
receive only a mention. In a book on the Realists it would have
been instructive to have a "bridging" chapter on these
three clusters of empirically-minded law professors and their
students, since they are a link between the Realists and the
current Law and Society Association members who work in a law
school setting. Perhaps, because Schlegel's narration stops about
1970, he will relate this story in a future publication. An
ironic outcome of the movement to bring social science into legal
studies is that the most fertile ground has been in undergraduate
and graduate programs on Liberal Arts campuses, especially those
without a law school.
Schlegel has a lively writing style, easy to read, and deeply
engrossing. The book is full of marvelous antidotes, delicious
metaphors, and bon mots. He gives us glimpses into his main
protagonists' lives, reporting on their personalities, their
personal styles, and their disappointments. We learn that
Oliphant was a wild man, and that by the late 1930s and early
1940s Moore's work was unintelligible to both social scientists
and law school colleagues, because it was "drawn to a
nonexistent paradigm within a nonexistent culture" (p. 237).
The books is richly textured, and so full of interesting stories,
that a reviewer can hardly begin to capture the flavor. For
example, we learn that in the early 1930s at Yale law school
Thurman Arnold (SYMBOLS OF GOVERNMENT) and Edward S. Robinson, a
Yale psychologist, taught a law and social science seminar,
called "the cave of the winds." Arnold emphasized the
irrationality of the symbols of government, pointing to law, the
Congress, and the Supreme Court -- all symbols which most
citizens treat as meaningful in political discourse. Robinson
attacked the legal profession for "its obsession with rules
and certainty" (p.19).
In the concluding chapter Schlegel tells us that although he does
not consider himself a postmodernist, he hopes we read his text
"in a deeply postmodern way" (p.261), for, he has
presented a different history of the Realists and he has offered
us that history in a different kind of recounting of events.
Schlegel passionately believes that previous intellectual history
has been wrongly presented as merely the history of ideas. What
ought to be discussed is which people working together (or apart)
on what ideas at particular times in certain places.
Furthermore, Schlegel wishes us to read his book to understand
the dilemmas of "what it is to be an intellectual in America
in the twentieth century" (p. 259). He fears some scholars
may try to dismiss his work as a mere example and not a
particularly representative one at that (p.260), because the
discipline of law is not as developed as say sociology. But it
would be hard for anyone who reads this book through to dismiss
it. Furthermore, I think Schlegel's readers will take his point
when he says:
Let us simply stop the pretense that it is the dance of reason
that we chronicle in intellectual history, if only in the name of
more accurately representing the thinkers of the past as that
humanistic ideal -- people trying their best to get from Monday
to Tuesday in as honorable a job as they have managed to find.
Let us stop looking for the dance of reason and record the dance
of life (p.261).
This is a masterful study. John Schlegel feels passionately about
the lack of introduction of empirical inquiry into law school
education, and he engages his reader in his dialogue. Every law
and social science researcher should read the book, since, like
therapy, it makes us feel better regarding the struggle in our
own lives to achieve integration of intellectual endeavor, and a
place on a faculty which creates positive working conditions. It
is a brilliant book, and a wonderful "read."
References:
Arnold, Thurman. 1935. SYMBOLS OF GOVERNMENT. New Haven: Yale
University Press.
Skolnick, Jerome H. 1966. JUSTICE WITHOUT TRIAL New York: John
Wiley & Sons
Ross, H. Laurence. 1970. SETTLED OUT OF COURT. Chicago: Aldine
Publishing Co.
Copyright 1995