Christopher Columbus Langdell (1826-1906) was perhaps the most influential figure in the history of legal education in the United States. He shaped the modern law school by introducing a number of significant reforms during his tenure as dean of Harvard Law School (HLS) from 1870 to 1895. Indeed, Langdell may well be the most influential figure in the history of American professional education because he established at HLS, with the help of President Charles W. Eliot, the model for twentieth-century professional schools. [1] His innovations—such as minimum academic standards for admission to degree candidacy, a graded and sequential curriculum, minimum academic standards for continuation in a degree program, a professorial career track for faculty members, and the transformation of the library from a textbook repository into a scholarly resource [2] —became the norm to which leading law schools, medical schools, and, finally, schools of other professions in the twentieth century aspired. Among these changes, none is more closely associated with Langdell than the introduction of case method teaching.[3]
Notwithstanding such innovative reforms, Langdell’s jurisprudence has long been interpreted as advancing legal “formalism” and “orthodoxy.” [4] And it can scarcely be denied that, while scholars have debated the character of this orthodoxy [5] and the meanings of “formalism,” [6] Langdell was certainly a formalist in the sense of believing that law has a governing form and that by knowing the relatively few rules constituting the orthodox form, one can deduce how cases should be decided. But this reputation for orthodoxy and formalism implies dogmatism, intellectual rigidity, and neglect of others’ opinions and views. Langdell has thus been portrayed as “the greatest living legal theologian” [7] who had an “obsessive and almost exclusive interest in books,” 8 “an industrious researcher of no distinction whatever either of mind or … style” whose “explanation, typically, is dogmatic rather than reasoned,” 9 and who was therefore “an essentially stupid man.” [10]
This pejorative interpretation of Langdell’s jurisprudence has been extended to his pedagogy, notwithstanding his innovation of teaching from cases. It has been inferred from the dogmatism, rigidity, and closemindedness imputed to his jurisprudence that, when teaching, Langdell merely tried to transmit his orthodoxy to students by commenting on cases in class and stifling critical questions and contrary views from students. In an often cited essay of 1906, Samuel F. Batchelder, who attended HLS from 1895 to 1898, observed, “Langdell never encouraged much discussion in class, and in later life was so brimful of his subject that he confined himself almost entirely to straight lecturing.” [11] Batchelder’s essay was quoted extensively in Charles Warren’s well-known History of the Harvard Law School (1908) [12] and reprinted in 1924. [13] Subsequently, Batchelder’s judgment has been widely quoted, as in Philip Wiener’s influential Evolution and the Founders of Pragmatism (1949), reissued in 1972 and still in print. [14] Grant Gilmore’s frequently reprinted Death of Contract reaffirmed the view that “Langdell’s version [of case-method teaching] had nothing whatever to do with getting students to think for themselves; it was, on the contrary, a method of indoctrination through brainwashing.” [15] Beyond this historiographical legacy, the pejorative view is confirmed by the testimony of other contemporaneous students in a long-neglected collection of letters. [16] For example, Clarke B. Whittier, who attended HLS from 1893 to 1895, later wrote that Langdell’s teaching “was extremely unsatisfactory … His discussions were stilted and academic and poor. Langdell was more of a logician than a lawyer in my judgment.” [17]
In the face of such historiographical and personal testimony, one hesitates before suggesting a contrary view. Nevertheless, there are compelling reasons to question this interpretation of Langdell’s intellectual work, particularly of his teaching, at least during the early period of his academic career. For one thing, it is difficult to reconcile his remarkable innovations in teaching and academic administration with the dogmatic rigidity attributed to him. This contradiction may, in fact, have recently induced a few scholars to begin revising the traditional view. [18] Nevertheless, such revisions have been dismissed by other historians of law and legal education as “merely an attempt to recover a time past that in the hagiography of law teaching was seen as a golden age until Grant Gilmore started several of us off trashing it.” [19] The irony of this response is that even these revisions have not fundamentally challenged the pejorative view. [20]
Another reason to question this interpretation is that the scholarship about Langdell is not informed by many of his early academic writings, which have recently been identified and examined in the Special Collections of HLS Library. The purpose of this essay, then, is to report that newly identified writings by Langdell and his students are yielding a more complex and compelling understanding of Langdell and his case method than has existed heretofore. These handwritten sources suggest that an important outcome of his early case method was the development of an independent, critical intellect in his students. Not at all a closeminded teacher who dogmatically transmitted a formalized orthodoxy to his students, the Langdell appearing in the new sources explicitly and not infrequently changed his mind in class, confessed his ignorance or uncertainty about points of doctrine, and asked his students to venture judgments and to challenge both his own views and those expressed by the judges and counsel in the case reports. He also, at times, informed his jurisprudence by “careful observation” of extralegal factors. Consequently, these newly examined writings justify a revision of the disparaging interpretation of Langdell’s early teaching and academic work. In addition they call for a reconsideration of the conventional judgment about his intellectual work overall, which has arisen by generalizing largely from his publications and teaching during the final third of his academic career.
The justification for this revision is strengthened by a striking and overlooked periodization in Langdell’s intellectual work that is revealed by a comprehensive review of the pattern of his writing and teaching. This essay begins with a description of this periodization. It then focuses upon the overlooked writings and teaching of Langdell during his Early Period. In that section I discuss two significant sources drawn from the newly examined writings and then reconstruct three class discussions from the period 1870-1883. These reconstructions are somewhat unorthodox methodologically; but it is hoped that the reader will, at least briefly, “entertain heretical opinions,” as Langdell told his students in 1870 that he himself was doing. Finally, I consider the evident shift from the early Langdell to the late Langdell in light of the larger context of his professional and personal life and propose four factors to explain the shift.
In conclusion, I suggest that the common pejorative interpretation of Langdell as rigidly dogmatic and obsessed with formalistic orthodoxy, both jurisprudentially and pedagogically, cannot be sustained for the early period of his academic career. Furthermore, there is good reason to think that his transformation or deterioration over the latter half of his career was caused “partly by circumstances beyond [my] control,” as Langdell himself suggested in 1883. [21] Due to those circumstances Langdell was “compelled to use methods by which it would be unfair to judge him as a teacher,” in the words of a student who attended his classes at HLS in the mid-1880s. [22]
I
Much has been written about Langdell and the events occurring in legal education during his tenure at HLS in the final three decades of the nineteenth century. But it has not been observed that both his academic publications and his teaching fall into three, remarkably distinct periods. This periodization into Early, Middle, and Late Langdell is the result of a twofold investigation I conducted during 1995 and 1996 with the generous help of members of the Special Collections staff at HLS Library. First, a thorough review of the holdings of Langdell’s academic writings led to the revision of the standard accounts of his bibliography. Those accounts include the list provided by Charles Warren, [23] which appears to be paraphrased from the somewhat more accurate version published by James Barr Ames, Langdell’s protégé and successor as dean of HLS. [24] The Centennial History of the Harvard Law School, 1817-1917 also apparently drew from Ames’s account; [25] and all of these were presumably superseded by the photocopied handout provided by the Reference Desk of the HLS Library as of 1996. [26] My recent review of Langdell’s writings revealed certain discrepancies among and inaccuracies in all of these accounts, resulting primarily from the complicated pattern of Langdell’s intense efforts at publishing during the first decade of his deanship. The outcome of this review is found in Appendix I, which provides a chronological bibliography of the academic writings of Langdell. [27] Second, there was no reliable and detailed schedule of the courses that Langdell taught during his tenure at Harvard. The need for this arose out of the effort to identify some of his early writings and explain the complicated relationships among them. Appendix III, based upon sources available in HLS Special Collections, presents such a schedule.
The significant conclusion to be drawn from these two appendices is that Langdell’s academic writing and teaching fall into three periods. The Early Period extended from 1870 to 1883, during which time he published prolifically and produced a series of what may be called his pedagogical works: seven casebooks or installments thereof, one revision of a casebook, two summaries of areas of law, and a revision of a summary. The Early Period ended in 1883 when Langdell abandoned his unfinished Cases on Equity Jurisdiction and temporarily ceased publishing. It bears noting that, although Langdell is characterized as a casebook writer, he published all of his casebooks in his first nine years at HLS and never completed another in the subsequent twenty-six years of his academic career. [28]
The end of Langdell’s Early Period in the early 1880s is marked not only by a cessation and a transformation in his academic publications, but also by what and how he taught, as is shown by Appendix III. Whereas he had ventured to teach nine different courses during his Early Period, the variety in his teaching ceased in 1883-84, when he established a schedule of teaching the same three courses annually until resigning as dean in 1895. [29] The same pattern obtained in his collaborative method of teaching with James Barr Ames. Between 1873 and 1880 Langdell and Ames taught each other’s courses, employed each other’s casebooks, and even co-taught courses in an unusually collaborative pattern, [30].
This collaboration is made even more striking by the fact that they consulted each other’s personal, annotated copies of the casebooks from which they taught. Langdell repeatedly wrote in his copy of Cases on Contracts (1870), “See note in Mr. Ames’s copy;” [31] and Ames transcribed several annotations, one of more than two hundred words, from Langdell’s copy into his. [32] In addition, Ames transcribed into his copy of Cases on Equity Pleading (1875-76) a number of long marginal comments directly from Langdell’s copy while occasionally noting “Per C.C.L.” [33] Given this unusual degree of mutual consultation, it is striking that their collaboration ceased abruptly in 1880. Ames and Langdell henceforth taught their own courses with their own casebooks and never again co-taught or employed each other’s casebooks.
After a hiatus in academic publishing between 1883 and 1888, Langdell began a Middle Period in which he wrote articles for the Harvard Law Review. Thus both the venue of his writings and their character changed, even though these middle works continued the pedagogical theme of the Early Period since they constitute the bulk of A Brief Survey of Equity Jurisdiction (1905). Notwithstanding this continuity, the nature of his work changed. The early writings and annotations are “heretical” and fertile, exhibiting a creative process of discovery. But the middle and later works are law review articles, which become increasingly specialized and expositional, adopting what has often been dismissed as a tone of formalist orthodoxy. Indeed, in sharp contrast to the casebooks that dominate the Early Period, at least two of the later publications are class lectures.
The Middle Period ended in 1892, commencing a second hiatus in academic writing that lasted until 1897. Then in the Late Period, between 1897 and 1906, Langdell rapidly published a second group of articles in the Harvard Law Review on a variety of topics. His teaching schedule also changed, for he began teaching two courses annually upon his resignation as dean in 1895. This arrangement continued until 1900 when he retired from active teaching. [34]
The three periods are distinguished by the venue and nature of the publications as well as by the character and the degree of variety in his teaching, although the greatest change occured at the end of the Early Period. The end of each period was marked by an abrupt cessation in academic publishing. By the Late Period, Langdell exhibited the characteristics that predominate in subsequent historiography. The newly examined letters of former students testify that “Dean Langdell was feeble” upon his retirement in 1895, as the dean of the University of Chicago Law School recalled in 1926. [35] Another former student and U.S. Supreme Court Justice Learned Hand, who attended HLS in the mid-1890s, wrote that Langdell’s “method was to use the cases in his casebooks as a starting point for discussion, but I could never observe that he paid much attention to the cases…. He told us a great many excellent propositions of law, but he laid them down dogmatically and we took them because of his superior, indeed of his extraordinary, learning.” [36]
This situation in the mid-1890s cannot be gainsaid, but it presents a problem rather than an answer for understanding Langdell and the inception of case method teaching. The late Langdell is irreconcilable not only with his exemplary effectiveness as a dean, affirmed by President Eliot, [37] but also with the decidedly “heretical” professor who appears in the new sources for the overlooked Early Period. In order to pose and explain this problem, the following section analyzes two of the most important early writings. It then uses the early sources to reconstruct three class discussions from the period 1870-1883, thereby conveying the texture and character of case method teaching upon its inception into legal and professional education in the United States.
II
The earliest of the newly identified writings from HLS Library is also one of the most significant. Apparently never before cited in the voluminous scholarship on Langdell and case method, this manuscript of Langdell, “Notebooks of Lectures on Partnership and Commercial Paper” (LPar70), consists of two, handwritten notebooks. It had been assigned a date of 1877-79 because Langdell wrote dates from these years on a list of dollar amounts and names at the end of the first notebook. [38] However, the recent review of his writings has revealed that these two notebooks record lecture notes from the course “Negotiable Paper and Partnership” that Langdell taught during his first semester at HLS in spring 1870. [39]
Unfortunately, the two notebooks are neither complete nor consecutive. [40] Yet, they contain striking comments by Langdell about his approach to jurisprudence, comments that may be among the most explicit in his extant writings. [41] In particular, LPar70 indicates that Langdell was far from oblivious to the contradictions and indeterminacy in legal opinions, including his own. [42] He told his students:
In offering such a test of … partnership as the foregoing, I admit that I have departed somewhat from the beaten track and that I cannot adduce a specific English or American authority in its support; also that there are numberless dicta and some decisions which cannot be reconciled with it. It is proper, therefore, that I should say something in justification of the view here advanced over and above a conviction of its correctness…. I would say, therefore, first, that no one has suggested any view by which all the dicta or even the decisions … in our books can be reconciled; hence it is no objection to the view presented by me that it will not reconcile them all. Second, I am simply adopting and carrying out the theory developed by Mr. Cory in his treatise on accounts, [43] the correctness of which has never been disputed … although it cannot be acted upon when inconsistent with any such of law…. Third, I have sought in vain for any other intelligible distinction between partnership and co-ownership. (notebook 1, leaves 57-59)
In this fashion, Langdell presents his judgment not only as one among many, but as, in fact, a minority view.
But now I come to a class of cases, which I think cannot be reconciled with my view of partnership; and yet I cannot say they are not law. I refer to cases of joint adventure or speculations of joint account. They are held to be partnerships; and of course they may be termed so if the parties so intend, but I do not think they commonly so intend…. But all the authorities hold otherwise [from me]; and the best that I can say is that they proceeded originally upon an erroneous principle and must now be regarded as anomalous. [The cases] were not held to be partnerships without a severe struggle. (notebook 1, leaves 68-70)
Ironically, Langdell thus proposes an “orthodoxy,” but not in the modern, pejorative sense of unquestionable dogma. Rather, he advances “orthodoxy” in the root, dialectical sense imparted by the Greek orthe doxa, meaning, literally, “right opinion.” As Socrates explains, certain of his views constitute orthe doxa because he believes them to be right although they are nevertheless “opinion,” not having been validated in the way that episteme, knowledge, is. [44] This dialectical, Socratic sense of “right opinion” is what the early Langdell seems to have in mind when explaining the epistemological status of his own jurisprudence. He believes his views are right, but he acknowledges that they constitute opinion, not having been validated and therefore not having attained the status of knowledge. Langdell is thus faithfully Socratic, in a way that his anachronistic detractors do not appreciate. [45]
Langdell also argues, contrary to the negative interpretation of his jurisprudence, [46] that the legal doctrine of partnership must be inferred from “careful observation” of extralegal factors, such as the practice of merchants. Indeed, practice, not a priori common law, is “the ultimate source of information” on the legal doctrine of partnership.
Partnership is a thing created by the parties, and in that respect it differs from a corporation, which is created by the state…. Therefore, no court can take upon itself authoritatively to define a partnership, and then say that everything which comes within that definition is a partnership and nothing else is. The definition may either be erroneous or incomplete. Partnerships being created by the parties and the law having to deal with them as it finds them, the only rules for ascertaining whether one exists are those deduced from a careful observation and study of their true nature; and the authority and value of all such rules depends [sic] upon their correctness and completeness. (notebook 1, leaves 9-11)
… but the vital part of the subject remains to be considered, viz. what must [be] the nature of that agreement and what must be the relation established between the parties … in order that a partnership should exist; and by what test or tests do we determine whether two or more persons connected with each other in business … are partners or not…. The question is whether the parties by their agreement have established that relation to each other which constitutes a partnership…. In order to determine whether the relation they establish constitutes a partnership or not, we must know what a partnership is; and practically we must learn the latter first…. But how have we gained that knowledge, or rather, what is an ultimate source of information on that subject? (notebook 1, leaves 46-47)
I answer without hesitation that the mercantile community, their ideas and their practice, constitute the ultimate source of information on the subject. How could it be otherwise? Partnerships are created by them alone, are——? them alone, and exist primarily for them alone; and the—? object of the law is to deal with them as it finds them for the purpose of administering justice when called upon to do so…. We must, therefore, deal with the term partnership just as we have dealt with capital and stock and profit and loss, i.e. see what the mercantile community mean by it…. (notebook 1, leaves 48-49)
In accordance with this approach to defining partnership, Langdell later observes in regard to negotiable paper that one must proceed both “theoretically and practically” (notebook 2, leaf 52v), inasmuch as “if you choose, in your declaration, to adopt the theory … perhaps you may do it … but this has never been the practice; nor would it generally be either convenient or advantageous.” (notebook 2, leaf 54v) This appeal to practice as “the ultimate source of information on the subject” provides the justification to adopt “right opinion” contrary to the doctrine prevailing in courts. [47] This justification is confirmed in what may be the most personal and emphatic statement on jurisprudence in Langdell’s extant writings.
I proceed to the subject of ‘Consideration,’ the only one of importance remaining. (State why I have left this till the end, instead of disposing of it near the beginning of the subject. Warn students that I entertain heretical opinions, which they are not to take as law but as what I think the law ought to be, if it is to be in harmony with the nature and functions of commercial paper.) You find it lain down that in between the immediate parties to commercial paper, the contract must be founded upon a consideration, … meaning that technical consideration which is necessary to support a contract … under … the common law…. I deny that this ought ever to have been held for law and I deny that it can be sustained on any intelligible principle.
On the contrary, if a man puts his name on a piece of commercial paper, I say he is bound to stand by the ordinary consequences of his act, unless he has some better cause for not doing it than the mere want of a technical common law consideration. I propose to state my reasons for this opinion; and I do it with the[?] less hesitation because I am sure that I cannot in any other way throw so much light upon the subject of consideration in connection with negotiable paper.
When one is considering what the law ought to be in respect to any feature of negotiable paper, the first thing to inquire into is the nature of the subject to which the law is to be applied; and until we understand that, rules of law will do us no good; for it has always been admitted that, upon the principles of the common law applicable to contracts and choses in action, bills of exchange could not exist at all; and hence we have been obliged to import the customs and usage of merchants in respect to them and make that in fact the law, which merely means that we have studied the nature and functions of the instrument and the various uses to which it is put.
I have built up a system of law upon that foundation, using the well known principles of the common law when they served the purpose and establishing exceptions when they did not. This is what the courts have always professed to do and what they ought always to have done; but, for obvious reasons, they have often failed to do it, and have gone on applying the legal rules with which they were familiar without perceiving that they had no proper application to negotiable paper; and I think the subject of consideration affords a striking instance of this. (notebook 2, leaves 56-60)
In congruence with these “heretical opinions,” LPar70 also reveals how in spring 1870, Langdell was preparing his pedagogical innovation of case method teaching. For he began putting cases and hypotheticals to the students even in these opening lectures to his first class at HLS:
Put a case founded on Munroe v. Bordies, 1 Parsons, 181, towit: I am an importer of dry goods in New York, being indebted to Mr. John Bright, a manufacturer in Manchester, to the amount of 10,000 pounds. I purchase a bill for that amount of Brown Bros & Co., payable to the order of John Bright at 60 days sight, and immediately send it by mail to Mr. Bright in payment of my debt. I being in good credit with Brown Bros. & Co., I pay them for the bills that I purchased of them on the next foreign post-day after they are delivered. On the day after I purchase the bill in question, I suspend payment, not having paid for the bill; whereupon the drawers write to the drawees not to accept the bill or pay for it. In consequence of this advice, the drawees refuse acceptance, and Mr. Bright sues the drawer. Have they any defence? Refer to the opinion. Again, suppose Mr. Bright, being the holder of a large amount of 5/20 N.Y. bonds, sends me $50,000 with instructions to sell them and remit the proceeds to him in a bill on London. I execute the agency and purchase a bill, etc. Will the drawer [of the bill] be liable in that case? (notebook 2, leaves 76-78)
In this fashion, Langdell was forcing students to grapple with the contradictions among and indeterminacy of legal opinions, as well as the extratextual factors shaping legal doctrine. At the same time, since this caseputting stands halfway between lecturing with a textbook and case method teaching, it appears that Langdell was experimenting with a pedagogy that he felt would be appropriate to his purposes and jurisprudence. LPar70 thus demonstrates an interim stage in the formulation of case method teaching, [48] which Langdell would introduce in the following fall with the explicit conviction that he was more “heretical” than orthodox (unless “orthodoxy” is understood in the dialectical, Socratic sense of a revisable opinion that is not yet validated as knowledge, but is nevertheless believed to be right).
Langdell introduced case method teaching in fall 1870 by means of LCon70, his personal copy of his first casebook, Cases on Contracts (1870), which stands as the pedagogical counterpart to the heretical jurisprudence expressed in LPar70. The complete, 1871 edition of Cases on Contracts is better known because it includes a widely quoted preface explaining and justifying case method in Baconian and Darwinian terms. This preface is all the more significant because Langdell wrote relatively little describing or analyzing case method teaching after that point. But no less informative is LCon70, even though it has been overlooked by scholars, because it was thoroughly annotated by Langdell and therefore lends a sense of what he was thinking in reading and employing the casebook. These annotations, or glosses, fall into the following categories.
First, the glosses make declarative observations that explain, summarize, or elaborate points. For example, Langdell translates a Latin quotation (39), refers to another case either within or without the casebook (12, 338), or invokes or quotes another authority, such as his mentor, HLS professor Theophilus Parsons. Sometimes Langdell explains confusing circumstances about a case: “This case was in two courts in all, viz. the sheriff’s county court and the court of sessions. There was one appeal, and four hearings, two in each court.” (112) Occasionally, he gives a brief rule: “This case shows that death, ipso facto, revokes an offer” of a contract (63). More often, his explanation or summary identifies a dilemma:
According to the doctrine of this case, a party may break a contract and become liable to an unlimited extent, without any fault on his part, and when he has no reason to suppose that he has made any contract. According to the other view, the worst thing that could happen would be that there would be no contract when one of the parties supposed there was one. Such are [the] respective consequences of the miscarriage of a letter according to the two views. (103, 105, 107)
In other instances, he simply observes, “Explain.” (245) Similarly, when the court states: “The case would have been very different if … ,” Langdell notes in the margin: “Comment on this.” (73)
That this routine practice was adopted by his students is shown by the annotations of Edmund M. Parker who wrote on his copy of Langdell’s Cases on Equity Jurisdiction in the academic year 1881-82. [49] Parker’s comments explain, elaborate, and summarize the doctrine of cases:
You must, in order to sustain a bill against several defendants, show that the same question is in dispute as to all. (51)
Case is late authority for the position that no two infringers can be joined without showing that the question is exactly the same in regard to each. (57)
Held. The bill failed as bill of interpleader…. It could be sustained as a bill for discovery. (124)
Case shows that you may have more than two defendants to a bill of interpleader … (127)
Second, Langdell’s notes pose questions. Some of these clearly have the didactic tone of an instructor testing students and expecting certain responses: “Why [is] Coates a party? … How does notice to Coates affect the case?” (20) “Why did Frith resort to Chancery? Meaning of appeal and difference between it and a writ of error.” (55) Many of Langdell’s queries, however, seek not to prompt a particular response, but to stimulate open inquiry, reflecting his own uncertainty about the answer: “When was the contract in this case completed, if at all, and why?” (5) “Why was it necessary in Forth v. Stanton to prove a promise to Plaintiff upon a new consideration? How does this case differ from” other cases? (264) “How did the question arise?” (348) In this vein, Langdell often employs a characteristic, legal Latinism: “Quaere, if the reasoning in this case would be applicable to … ?” (84) “This is mere recital and not a direct allegation, and so bad on special demurrer…. sed quaere de hoc.” (444)
Third, Langdell raises hypotheticals, some of which are intended purely to test the students: “Suppose the declarations had stated that the larger sum was due without doubt or controversy, would [the] defendant’s promise have been binding? Yes, because payment of the less sum would not have been a satisfaction of the greater, semble.” (314) Other hypotheticals, however, appear intended to initiate open discussion: “If the son had been a minor and a member of his father’s family, could Plaintiff have recovered [on the debt]; and if so, upon what theory; upon an express or an implied promise?” (367) “Would this case have been brought in England in a common law court or a court of equity and why? Could Plaintiff or not have had a specific performance and why? … Would the decision in this case been different, if there had been no contract until the receipt of defendant’s letter of acceptance?” (24-25) [50]
These second and third practices of raising questions and hypotheticals were acquired by his students, as is demonstrated by Parker’s glosses in PEq79:
How does this case differ from the ordinary one of a factor[?] selling the goods to principal on commission. The money which they receive on sales they credit plaintiff with and debit themselves. (111)
Can tenant say that rent is claimed by landlord and third party and file interpleader? No, no one but landlord can be entitled to rent unless … (interleaf 136-37)
Why is there no estoppel here[?] … Rule is that new tenant is as much estopped by att-rnment[?] as the original one in whose case he is substituted. (interleaf 186-87)
Q[uaere]. whether the depositions would be evidence against the defendants who had not received notice? (128)
Q[uaere]. whether the fact that both landlord and his assignee had conveyed to trustees made any difference. (146)
Fourth, Langdell expounds what he calls in LPar70 his “heretical opinions” about the cases. These are either stated outright: “The Chancellor failed to distinguish between rejecting an offer, and not accepting it.” (61) Or, they are put as questions: “There could be no contract in this case…. The court held there was not, and correctly so but quaere as to the reason. The true reason was that there was no acceptance of the offer; not that the offer had been withdrawn” as the court said (50).
Sometimes these “heretical opinions” are advanced laconically: “Correct” (241), “not-law” (241), “no” (241), “Right” (337), or “Wrong” (337); and such laconic comments might be construed as evidencing a dogmatic attitude. But this interpretation rests upon presupposing the pejorative view of Langdell, as can be seen through a comparison with the glosses of Ames, who is commonly said to have been “Socratic” and inviting in his case method. [51] Langdell’s laconic comments such as “Right,” “Wrong,” or “No” are far less numerous than Ames’s; and Langdell’s are confined to specific points, sentences, or paragraphs within case reports. Rarely does Langdell apply to an entire case the unqualified, dismissive comment that is a common epigraph for Ames: “Case wrong.” [52] Langdell’s judgment about rightness or wrongness is usually nuanced and qualified. He is likely to write: “That seems to be the wrong ground on which the decision can be supported, there being no presumption in favor of the jurisdiction of the inferior court.” (190) Or: “This case was decided correctly, but on erroneous grounds; its errors caused the decision in …. (304) … This indicates the true ground of the decision.” (333, 335) In contrast, Ames makes many, brief, dismissive comments, which appear rarely in Langdell’s notes. It is typical that, in regard to the same point, Ames glosses “!!Absurd” in pencil and later overwrites “Absurd” in red pen (319), while the early Langdell notes: “Upon which rule did the arguments and decision proceed?” (319)
However much Ames may have indulged in dismissive commentary, he and other students acquired from Langdell’s case method the capacity to exercise a critical, independent intellect in devising and posing heretical questions. The glosses of Parker in PEq79, for example, also aggressively challenge judicial reasoning, while echoing some of Langdell’s phrasing:
Wrong. Demurrer should have been overruled. (49)
The reasons for this case would seem to be satisfactory were it not for patent and copyright cases. (64)
The Court is of course inconsistent in talking about this as a bill quia timet … (70)
Wrong.The fact is both have an action and neither has a defence. (93)
What judge should have done on these motions was either to grant them on ground of laches or deny them, but what he does is to send the parties before a master to pass upon their rights…. Order in itself is absurd … (interleaf 192-93)
Parker’s assimilation of Langdell’s reasoned challenging of authority is shown even more pointedly by the fact that, while Parker records what “L. thinks” in his glosses, he does not dogmatically invoke Langdell’s authority but cites him as one more authority to be considered.
[Case is] contrary to L.’s idea that though one has filed a bill in equity, [filing an additional bill of] interpleader is proper. (interleaf 14-15)
Held bill will not lie and L. thinks very properly so for the relation was simply that of debtor and creditor same as insurance broker in Eng…. Of course, the case is very different where one takes certain stocks or bonds to broker to be sold. (98)
1882. L. says one claim here was equity and the other [a] legal Question but admits that if annuitants were equity claimants they could not have distrained. (127)
L. agrees with case but thinks order as to costs extraordinary…. L. doesn’t see why defendants should be as assignees entitled to any special favor. (interleaf 144-45)
L. thinks this case wrong and is surprised at the decision. (interleaf 152-53)
Fifth and finally, [53] Langdell not infrequently revises his opinion. In LCon70 glosses are crossed out and corrected (319, 433), while in the students’ annotated casebooks the shift in Langdell’s view is sometimes explicitly noted, as appears in the reconstructed class discussions below. Such shifts, in combination with the open-ended character of many questions and hypotheticals, indicate that Langdell likely viewed the discussion of cases in class as an opportunity for him to test and refine his own thinking—in short, to learn—no less than for his students. Langdell tried to ensure that the independent intellect would be self-critical, would revise its own views, and would acknowledge those revisions. The newly examined writings from the first decade of case method teaching suggest that this was his ultimate goal.
Taken together, these five purposes and strategies offer good reason to question the characterization of Langdell as dogmatic, rigid, and closeminded. Indeed, the consideration of doubtful law at the end of the third reconstructed class discussion below suggests that Langdell’s view of right opinion on legal doctrine was, at least in the 1870s, not far from Charles S. Peirce’s conception of “belief” as the fallible and working consensus of a community of investigators who are gradually moving toward “truth,” understood as “the opinion which is fated to be ultimately agreed to by all who investigate.” [54] In addition, Langdell’s approach to teaching law through cases can be understood in terms of the inductive method of William Whewell (1794-1866), who, in the mid-nineteenth century, had engaged John Stuart Mill (1806-1873) in a famous debate over the meaning of “induction.” Both the proximity of Langdell’s approach to the thinking of Peirce and Whewell and its setting within intense and widespread debates about “inductive teaching” and “induction” appear to have gone unnoticed by scholars. [55] Ironically, Peirce and Whewell, who are today regarded as the most prescient nineteenth-century thinkers on these matters, have been lauded by some scholars who invoke the pejorative interpretation of Langdell. [56]
III
We have investigated some insights into Langdell’s early jurisprudence derived from LPar70. And we have noted the categories of purposes and strategies of case method teaching that appear in LCon70. I will now attempt to portray the texture and character of Langdell’s case method during his Early Period. My approach is to weave together excerpts from the annotated casebooks and other early sources, thereby reconstructing three class discussions from the period 1870-1883, when case method was introduced into legal and professional education in the United States.
The potential and opportunity for this reconstruction arise from the dialogical character of the early handwritten sources. Dialogue is intrinsic to an annotated document by virtue of “its dialectic between Text and Annotation,” as Natalie Zemon Davis observed about the annotated legal case report that was her main source for The Return of Martin Guerre. [57] In addition, some of the annotations in the casebooks attribute questions and remarks to other persons, including Langdell, Ames, and students in the classroom. Such attributions record a dialogical exchange among the referenced person, the annotater, and the printed text. Finally, some of the annotations in different casebooks are factually related in a dialogical sequence, as seen in this example from two, annotated copies of Cases on Equity Pleading (1875): [58]
1. In 1875-76 Langdell responds to the text by writing a ninety-five-word gloss in his copy. (LEq75, 178)
2. Later in 1875-76 Langdell responds to the gloss by crossing out nine words.
3. Still later in 1875-76 Ames transcribes in pencil Langdell’s gloss, omitting the crossed-out words, into his copy. (AEq1, 178)
4. Ames reviews and reaffirms the gloss by overwriting the pencil in red pen, probably in 1876-77.
5. Contemporaneously, Ames adds a fifty-word, red-pen gloss on the facing page. (AEq1, 179)
6. Meanwhile, Langdell also writes a sixty-word gloss on the facing page. (LEq75, 179) This likely occurs after 3., because Ames does not record it in his copy.
7. In 1877-78 Ames reaffirms the red-pen glosses in AEq1 by copying them into AEq2. (178-79)
When their factual relationship is revealed, these sequential glosses resemble a conversation; and this dialogical character makes it possible to reconstruct some of the narrative in Langdell’s classrooms during his Early Period, based upon a careful analysis of the relationships among the various glosses. To understand the process of reconstruction, however, we should first consider some of the methodological issues raised by recent efforts to reconstruct narratives from fragmentary sources. Three prominent works and some criticial reviews have stimulated much discussion in this regard: Natalie Zemon Davis, The Return of Martin Guerre (1983); [59] Simon Schama, Dead Certainties (1991); [60] and John Demos, The Unredeemed Captive (1994). [61]
The most important question here is the relationship between fact, on the one hand, and imagination, speculation, or invention, on the other. The latter terms are often employed interchangeably with “fiction” by reviewers critical of these efforts at historical reconstruction, who warn against “tricking the reader into taking such ruminations as fact.” [62] These warnings presuppose a sharp distinction between fact and non-fact, as is expressed in moralistic tones by the eminent American historian Gordon Wood in a review of Schama’s book. [63] The response to such fears of historiographical declension has been to deny the bright-line distinction upon which they rely. As if in reply to Wood, Schama writes in his Afterword, “even in the most austere scholarly report from the archives, the inventive faculty—selecting, pruning, editing, commenting, interpreting, delivering judgments—is in full play.” [64]
Certainly, all historiography involves imagination, at the very least in the literal meaning of the term: the creating of images in the mind, as Eva T. H. Brann explains in her magisterial history of the imagination. [65] Demos’s reflections upon an eighteenth-century document demonstrate how all historiography creates images of the past: “Inevitably, a scholar who holds [the original document] in his hands sees more than the words on the page: sees the rough (but remarkably strong) qualities of the paper, the occasional blurriness of the ink, the clear and steady penmanship of the writer (clear and steady in spite of the horror). Sees also, behind the pen and paper, the figure of the Colonel moving amongst the survivors, comforting and questioning (and writing) by turns. The pastness of history briefly dissolves—or, rather, re-forms as the succession of present moments it was (and is).” [66] In this way, it seems that all historians step beyond fact into imagination, or fiction, if one prefers that term.
But perhaps the step need not be taken. Demos elsewhere notes, “Some things we have to imagine,” as though some things in the past did not have to be imagined. [67] Schama, too, observes that “[a]lthough both [of his novellas] follow the documented record with some closeness, they are works of the imagination, not scholarship.” [68] To this, Gordon Wood responds by virtually eviscerating his own distinction between fact and fiction: “These are not contraries. Historical scholarship should not be set in opposition to imagination. History writing is creative, and it surely requires imagination….” [69]
This reversal of roles between Schama and Wood indicates that the points of disagreement often highlighted in the methodological debate are not really at issue: whether a simple positivism is inadequate and whether historians may legitimately employ imagination. No one denies these points, if this small set of works and critical reviews is at all representative. As with the writing of history itself, the devil is in the details, in this case, the steps of method; and it is striking that these methodological discussions say relatively little about the precise steps of reasoning involved in the reconstructions. Terms such as “invention,” “creation,” and “speculation” are employed without explaining specifically how the bridge from the facts to the images or reconstructions is built. Perhaps this is because the debate over imaginative reconstruction is relatively recent. By contrast, in the thirty-year-old controversy over “the influence model of historical explanation” intellectual historians have identified and debated a few, specific criteria by which ideas from one source may justifiably be said to influence ideas in another source. [70] Without making any claim to originality or completeness, the following paragraphs tentatively sketch three steps of reasoning and the associated objections that are involved in these imaginative, historical reconstructions.
First is the primary inferential mode of all historiography, the induction of conclusions from particular facts. In the first half of the twentieth century, a number of preeminent philosophers of science, including John Maynard Keynes, Hans Reichenbach, and Rudolf Carnap, energetically attempted to codify rules for inductive reasoning based upon the calculus of probability. [71] But this effort was not successful, and philosophers generally came to agree that the induction of a conclusion (which is to propose a hypothesis) is “not a mechanical response to factual problems…. It must go beyond the known facts and thus represents a leap of the imagination, an act as creative as that of any artist.” [72] Induced conclusions (that is, hypotheses) are thus “free creations of the mind.” [73] In this way, philosophers affirmed the “strikingly modern” [74] view of William Whewell, who in 1849 maintained, against John Stuart Mill, that “the process of induction includes a mysterious step, by which we pass from particulars to generals, of which step the reason always seems to be inadequately rendered by any words which we can use.” [75] This view from philosophers of science confirms that all historiography involves imagination or invention. But here the imagining refers to creating inductive inferences, rather than images.
The rules of inductive reasoning in historical reconstruction are thus not at issue. The objections arise in regard to the empirical ground of the induction, specifically when the ground is not documentary or observable evidence related to the particular case from the past, but findings from other disciplines, such as psychology, sociology, literary theory, or feminist studies. This resort to potentially anachronistic or distant material occurs frequently in the imaginative reconstructions, which attempt, by definition, to build beyond the precipice where the evidence about the historical case ends. In order to do so, any available means of support or leverage is employed; and opposition to this move is exemplified in Finlay’s complaint against Davis’s allegedly “complicated psychological reading” and, perhaps, her reliance upon “concepts and methods drawn from recent innovations in anthropology, ethnography, and literary criticism.” [76]
Inducing inferences about the past from observations or findings of modern disciplines is problematic. The problem is compounded when the inductive propositions are employed as premises for deducing further conclusions, a second step of reasoning in imaginative reconstruction. In the literature cited here, Finlay gives the clearest description of this move and the concomitant objection when he declares that “Davis fails to show that her view of women in peasant society is relevant to the case she is examining. Instead she imposes her notion of peasant women on Bertrande, whose conduct and character thereby are seen as … supposedly characteristic of peasant women in general.” [77] In these words, Finlay objects to what is virtually a standard-form syllogism implicitly posited by Davis:
The “values and habits of sixteenth-century French village life” were thus. [78]
Bertrande de Rols was a sixteenth-century French village woman.
Hence, Bertrande shared those values and dispositions.
This deductive reasoning is cardinal to all the imaginative reconstructions because, in the absence of evidence about the particular, inferences are deduced from the class to which the subject belongs. [79] Finlay’s objections are directed, first, to the premises about sixteenth-century, French, peasant women, which, he believes, are anachronistically shaped by twentieth-century feminist norms due to the influence of modern disciplines, as mentioned above. [80] But he also objects to deducing or “imposing” a conclusion in regard to a particular historical case. In other words, Finlay is not convinced by a deductive inference without verification of the specific conclusion from “the documentary record.” [81]
Verification is a third step of reasoning in imaginative reconstruction. According to the now classic distinction established by Hans Reichenbach, [82] verification is a mode of inductive reasoning complementary and converse to that of the first step of discovering generalizations or hypotheses from particulars, because verification means testing an inductive inference by comparing it to the particular evidence. Verification keeps “free creations of the mind” in check and is thus both the standard expectation of historiography, as Finlay’s objection shows, and the greatest problem for the imaginative reconstructions, which, by definition, cannot verify their speculations. The works of Schama and Demos present opposite ways of addressing this problem.
Schama appears to claim that Dead Certainties is historiographically legitimate when he eschews “a naively relativist position that insists that the lived past is nothing more than an artificially designed text.” [83] But he then seems to disavow the claim by saying that his “stories” are “historical novellas, since some passages … are pure inventions, based, however, on what documents suggest.” [84] This ambiguity is demonstrated in the documentation of the book, for Schama provides a brief, general discussion asserting that “the narratives are based on primary sources,” but no notes. He thus sidesteps the issue of verification (and renders the book virtually useless as a guide or reference for other scholars). [85]
Diametrically opposite to Schama’s approach is that of The Unredeemed Captive in which Demos carefully documents the nature, relevance, and limitations of the materials from which generalizations and the premises for deductive inferences are induced. [86] In addition to the extensive notes, the text of Demos’s narrative is extremely self-conscious about its sources and limitations, employing questions and incomplete sentences in order to convey points of uncertainty about the sources. The “brooding omnipresence” of the historian is never absent from the reader’s sight, and this is precisely the problem because, while Schama casually neglects verification, Demos seems absorbed by the issue to the point that it drowns out the narrative voice that he regards as both concomitant to his reconstruction and the hallmark of the book. [87] Where the documentary sources run thin and Demos undertakes an “imaginative recreation of events,” [88] he abandons the narrative voice and carefully distinguishes what he labels as “FACT” from interpretation [89] or subtly disclaims responsibility for the imaginative reconstructions that he creates. [90] Thus, Schama, the “born storyteller,” [91] blissfully narrates and ignores verification, while Demos is so constrained by the issue that he incessantly interrupts the narrative, detracting from his brilliant effort at reconstruction.
These three steps of reasoning—inductive discovery, deductive inference, and inductive verification—and their associated objections seem unavoidable in imaginative, historical reconstructions. The substantive objection to inductive discovery is not the imaginative aspect, understood either as imaging the past or inventing inductive generalizations, for this aspect, as seen above, is widely acknowledged to be part of conventional historiography and scientific hypothesizing. The objection concerns the nature of the ground for the induction if it is drawn, as often happens, from discipines or fields that are remote from historiography and may involve anachronism. The substantive objection to deductive inference is intrinsic, given that deductive validity does not meet the historical canons of empirical verification, as seen in Finlay’s response to The Return of Martin Guerre. This objection, then, elides into the issue of verification, which poses the problem of presenting documentary evidence to validate specific points in the inferred reconstruction. In the absence of such evidence, even the plausibility of the reconstruction may be denied by a strict reading, as Finlay maintains. [92] Nevertheless, Davis’s approach of combining precise documentation with “a literary construction … to advance my arguments … as much by the ordering of narrative, choice of detail, literary voice, and metaphor as by topical detail” [93] seems a more effective strategy than does either ducking the issue of verification altogether, as does Schama, or incessantly interrupting the narrative with comments and apparatus distinguishing “FACT” from “speculation,” as does Demos.
We can now relate these methodological issues to the reconstruction of discussions held in case method classrooms during Langdell’s Early Period, 1870-1883. But first a few technical points should be observed. The following three class discussions—held in December 1881, October-November 1875, and February 1872—weave together glosses and corresponding text from annotated casebooks that were reviewed during 1995 and 1996 in the Special Collections of HLS. Some sample pages from the casebooks are reproduced here. [94]
As the sample pages illustrate, deciphering the annotations in the casebooks has been challenging for several reasons. Langdell’s handwriting is notoriously obscure. The entry in the HLS index describing Langdell’s papers states that he writes “in a hand so difficult as to be almost illegible to the average reader.” [95] In addition, the extensive layering and minuteness of others’ annotations make them difficult to read. Finally, the pages of some of the books, particularly ACon71, are deteriorating and crumbling. As a result, the deciphering process is painfully slow; often an entire four-hour session has been devoted to two or three pages of annotations on a casebook. [96]
Once deciphered, the handwritten annotations, as well as the printed text, provide the bulk of material constituting the following reconstructed class discussions. Most of the language in these reconstructions is therefore quoted directly from the documentary record, in contradistinction to dialogues in Dead Certainties that “are purely imagined fiction” [97] and those in The Unredeemed Captive that are “no more than conjecture.” [98] Furthermore, the language in the reconstructed discussions is drawn not from different parts of the documentary record, but from that pertaining to the specific historical event being portrayed. [99] For example, the second class discussion is reconstructed from annotations written by identifiable persons attending the same course and witnessing the same event during the same class meeting on October 29 and November 4, 1875. This specific contiguity and coincidence is one of the contributions to the documentary record provided by carefully analyzing these annotated casebooks. In fact, it is remarkable that out of the several dozen annotated casebooks preserved in HLS Special Collections from the period between 1870 and 1910—during which some fifty instructors taught hundreds of students in thousands of class meetings—four annotated casebooks happen to coincide so that the owners can be located in the same room witnessing the same reversal of opinion by Langdell on those dates.
The informality of the glosses makes an additional contribution to the documentary record. In contrast to many historical sources, these annotations are relatively unself-conscious, being intended only for the eyes of the writer, much like a private journal. Moreover, the annotations were presumably written quickly and spontaneously, without artifice, as is shown by occasional cross-outs and corrections. In contrast, the annotated case report serving as the major source for The Return of Martin Guerre was composed for public circulation in print, and the author “exaggerates certain things and omits others … even … lies a little,” as Davis observes. [100] The genuineness and spontaneity of the glosses in the HLS casebooks compensate for the fact that some of the annotations are likely the thoughts, rather than the exact words, of the participants in class (although many comments are specifically attributed to individuals, particularly to “L.” or Langdell). Paradoxically, in fact, these unspoken and spoken annotations may provide a more faithful version of what was communicated in class than would an observer’s report, if such existed, because an observer would inevitably shape the account or miss sotto voce comments. For example, a quoted exclamation such as “Damn rot—per L. Prof. Nov. 4.;” [101] a metaphor placed in parenthesis, such as “(L. changes his ground … );” [102] or an emphatic adverb, as in “Langd. now says opp.,” [103] provide valuable insight into listeners’ reactions and the emotional tone of the discussion.
This point about emotional tone raises the issue of the imaginative act of induction. Although the annotated documents are dialogical in nature, as noted above, the glosses are not written in the form of a conversation. Reconstructing the class discussion has meant selecting, ordering, and weaving together quotations from glosses and printed text, entailing a number of inductive and deductive inferences.
Background and premises for these inferences are drawn from primary sources that include all the annotated casebooks and other early writings discussed herein, as well as the long neglected collection of letters from former students of Langdell and Ames: four of whom attended HLS during the 1870s, ten during the 1880s, sixteen during the 1890s, and fifteen during the early 1900s. [104] Secondary sources include published essays by former students and colleagues of Langdell recalling his teaching, [105] as well as recent scholarship concerning case method teaching and legal education cited in the notes herein, especially the careful study by William P. LaPiana. [106] My own work provides general background about the history of professions and professional education. [107] Information concerning HLS students is drawn from the HLS Quinquennial Catalogue [108] and that concerning the bibliography and teaching schedules of Langdell and Ames is found in the appendices to this essay.
These ancillary sources inform the imaginative induction, first, by shaping the narrative structure of the class discussions. For example, in the first reconstruction the glosses record that Langdell reversed his view on a point of doctrine, perhaps admitting an error in his reasoning. From other primary [109] and secondary [110] sources it can be induced that this was a general pattern, and that students reacted with surprise, frustration, and amusement, reactions that are verified by exclamations and adverbs in the glosses pertaining to the first reconstruction. Consequently, the narrative structure of this particular class discussion can be inferred from this general pattern:
1. Langdell leads a class meeting with the authority of a senior professor respected by his students.
2. In a subsequent meeting Langdell explicitly reverses a position that he previously established.
3. Students respond with a mixture of surprise, frustration, and amusement.
4. Langdell proceeds as though this reversal by a senior professor should not be unexpected.
In addition to the narrative structure, the ancillary sources specifically inform the imaginative induction by supplying interpolations and a staging framework for the quotations. Some of these interpolations, such as questions and responses “stating the case,” are inferred from records of how Langdell generally conducted case method, ranging from the caseputting in LPar70 to the anecdotes recorded in the published essays of former students and colleagues. For example, the interpolated question “Could you suggest a reason?” and the interpolated statement “Gentlemen, I should like a little more precision in the use of terms,” are said by William Schofield to have been expressed by Langdell with “frequent iteration” and are therefore included and attributed to Schofield in the reconstructions, [111] although they are not verified by the annotations in the casebooks. Other contemporaneous source materials, upon which Langdell’s students relied, are also employed to adumbrate annotated definitions of a term or to respond to an annotated question. For example, Black’s Law Dictionary is quoted in the reconstructed class discussions. [112]
An example of this interpolated and staging material is the hooting and foot stamping during class discussions. This behavior is known to have been common among nineteenth-century students at Harvard and other colleges and universities, as Schama recreates in Dead Certainties. [113] While the unruliness of HLS students during the 1870s is discussed by LaPiana, [114] this specific behavior during case method teaching at HLS is reported in secondary accounts [115] and is testified to have continued into the early twentieth century. [116] Another example of this interpolated material and staging is smiling, laughing, and cheering, which is reported in students’ recollections. [117] Consequently, a general pattern of these behaviors can be induced from the record, and their occurrence in this specific instance can justifiably, I believe, be deduced. Documentary verification of these behaviors in these specific, reconstructed discussions is lacking, however.
Another kind of interpolated staging is the introduction, for the sake of variety, of a few anonymous students (e.g., Student1, Student2) and the attribution to them of some of the caseputting or annotated glosses in the students’ casebooks. It should be noted, however, that quotations attributed to Langdell or Ames are drawn only from their own handwritten glosses, from words explicitly or indirectly attributed to them by annotations in other casebooks, or from the printed case reports, which they doubtlessly quoted in class from time to time. [118]
The approach to verification in the following reconstructions resembles more closely that of The Return of Martin Guerre than Dead Certainties or The Unredeemed Captive. The intent is to document precisely the sources of the reconstruction and to reserve historiographical observations for the notes and introduction, rather than interrupting the narrative. An exception to the latter guideline is that the quotations from the primary sources are italicized, so that the reader can see what and how material has been interpolated. In order to distinguish annotations from the printed text of case reports, citations to the annotations are indicated by the page number and the suffix “a,” whereas quotations from case reports are cited by the page number alone. The following example of this citation system is taken from a statement by Langdell in the second reconstructed class discussion:
Langdell: … As Chief Justice Abbott states in Longridge, The law might fairly be considered as doubtful [when] there [are] contradictory decisions on the subject. (310)
As for myself, Mr. Ames, you will recall that in my opening lectures in Partnership last year I tried to warn students that I entertain heretical opinions, which [you] are not to take as law but as what I think the law ought to be. Indeed, I specifically addressed the subject of ‘Consideration’ in this regard. (LPar70, notebook 2, leaves 55, 56) My judgment, like the opinion of [the] parties … is simply evidence about whether law is doubtful. (ACon71, 311a)
The first italicized phrase is quoted from the printed case report on page 310 in Langdell’s Cases on Contracts (1871), which is cited in the introduction to the reconstruction. The second and third italicized quotations are drawn from notebook 2, leaves 55 and 56 of the lectures in LPar70, which Langdell had delivered in the preceding spring. The final two italicized phrases are quoted from the handwritten gloss on page 311 in the annotated casebook ACon71, which is Ames’s annotated copy of Langdell’s Cases on Contracts (1871), as described in the introduction to the reconstruction. The nonitalicized material is my interpolation deduced from what is known about classroom teaching in law schools and more generally.
Each of the following reconstructed class discussions is preceded by an explanation of the casebooks that it quotes and the particular situation that it portrays. The reader may wish to refer to Appendix II for a key to the abbreviations of the sources and to the other appendices for additional information about the bibliography or teaching schedule of Langdell or Ames. Abbreviations, punctuation, and capitalization in the handwritten sources have been converted to standard English; points of uncertainty in deciphering the annotations are indicated by dashes or bracketed question marks.
IV
Langdell’s “Amusement” about “An Account Annexed.”
A Class Discussion of December 1881 in Langdell’s
“Jurisdiction and Procedure in Equity—Third Year”
Beginning in the academic year 1879-80, Langdell’s course “Jurisdiction and Procedure in Equity” became the first half of a two-part sequence. That first half, retitled “Jurisdiction and Procedure in Equity—Second Year,” was taught by Ames, employing Langdell’s casebook, Cases in Equity Pleading. The newly introduced second part, entitled “Jurisdiction and Procedure in Equity—Third Year,” was taught by Langdell who issued installments of a privately printed casebook, Cases on Equity Jurisdiction, from 1879 to 1883. Langdell began teaching both courses in 1880-81 and continued doing so thereafter.
This new casebook was never completed or formally issued with a publisher’s imprint, and Langdell abandoned its use in 1891. The HLS Library holds an unfinished version of 369 pages, as well as a second copy ending on page 242 that was clearly intended as an installment or preprint, having no front pages and many blank endsheets and frontsheets. This second copy, PEq79, was owned and heavily annotated by Edmund M. Parker (Harvard A.B. 1877), who attended HLS from September 1879 until 1882, when he received the LL.B. A gloss dated “1882” (127a) confirms that Parker appropriately took the course during his third year, 1881-82. An interleaved page of notes is described as “Feby 23 copied from Hudson” (130-31a), and this reference fits perfectly Winthrop Hudson (Harvard A.B. 1879) who was enrolled contemporaneously with Parker from 1879 to 1882. Parker annotated the book at least twice, clarifying his own thinking and reporting shifts in the views of Langdell, such as when Parker glossed one of his earlier annotations by writing: “Later. L. thinks that….” (153a) [119]
In addition to PEq79, the HLS Special Collections holds two boxes of Parker’s class notes, which do not refer to Langdell’s courses, as well as four other heavily annotated casebooks. One is Ames’s Cases on Torts (1874), employed by Instructor Henry Howland in the course on torts during all three years of Parker’s attendance at HLS. Another is Ames’s Cases on Trusts, used by Ames in the second and third year of Parker’s attendance. A third is Ames’s Cases on Bills and Notes (1881), which Parker dated in the academic year 1881-82, when Ames taught the course. The last is Langdell’s Cases on Sales (1872), which was employed in classes taught by James B. Thayer during the early 1880s and abounds in annotations stating “T. thinks….” Taken together, Parker’s materials provide a valuable synchronic comparison of case method teaching at the close of the first decade of its practice, and they have provided background for the brief reconstruction below.
The quotations woven into the following class discussions are drawn from PEq79, pertaining to “Jurisdiction and Procedure in Equity—Third Year” taught by Langdell during 1881-82. Given the February date on the interleaf noted above, the following incident likely occurred at the end of a class meeting in December 1881. The discussion concerns the question of whether a particular “bill” (or request) for an account will “lie” (may be heard) in a court of equity. [120] The significance of this reconstruction is not only the factual coincidence of Parker and Hudson or the vehemence of the quotations, but also the apparently independent verification of the following reconstructed incident concerning “a local custom in N[ew] E[ngland] of suing on an ac[count] annexed.” [121]
The verification is found in a posthumous memorial to Langdell, written by Joseph H. Beale, Jr. (LL.B. 1887), who recorded, “Probably no one who heard it will ever forget [Langdell’s] amusement when … someone mentioned the Massachusetts action upon an ‘account annexed.’” [122] Beale’s first year at HLS was 1884-85, three years after the incident recorded by Parker, so it is certainly possible that Beale is referring to the incident reconstructed below, which then became part of the oral tradition recounted either by upperclassmen or, perhaps, by Langdell himself to subsequent classes. [123] If not, it is remarkably coincidental that both Parker and Beale recorded the laughable “nonsense” (PEq79, 109a) of a student’s comment about “a local custom in N[ew] E[ngland] of suing on an ac[count] annexed” or “the Massachusetts action upon an ‘account annexed.’”
In the following reconstruction, Langdell’s words are drawn from glosses attributed explicitly or indirectly to “L.” The words of Parker, as well as anonymous Student1 and Student2, introduced for the sake of variety, are drawn from the student glosses in PEq79. The words of Winthrop Hudson, who can be factually located in the course, are drawn from the printed case report, which was doubtlessly quoted in class.
December 1881
“Jurisdiction and Procedure in Equity—Third Year,” Harvard Law School
LANGDELL: Mr. Hudson, please state the holding of Vice-Chancellor Turner in Phillips v. Phillips (1852). (108)
HUDSON: The holding? … Turner’s holding, I believe, is this: I have no doubt that this bill cannot be maintained. I take the rule to be, that a bill of this nature will only lie where it relates to that which is the subject of a mutual account … where each of two parties has received and paid on the other’s account. (108-9)
LANGDELL: Please explain the rule, Mr. Parker. (108a)
PARKER: The case shows that [the] Court will not allow an equity assumpsit on any light grounds. (108a) Thus, … I think the Court recognizes the distinction between [common law] action proper and equity assumpsit. (108a)
LANGDELL: If so, [the Vice Chancellor] does not state it correctly. (108a)
[Murmuring among the students.]
LANGDELL: Do you agree, Mr. Parker?
PARKER: I do.
LANGDELL: Could you suggest a reason for your view? (Schofield, 275)
PARKER: This idea of mutuality … makes no difference whatever. The fact of both having received and both having paid out money does not make them any less or more than simple debtors and creditors. Either the judge is misreported or he changed his mind in a later case. (108a)
LANGDELL: Indeed, Mr. Parker? Do you agree, Mr.———?
STUDENT1: I think so. This idea has added to confusion on this subject. (108a)
LANGDELL: And you, Mr.———?
STUDENT2: I do. This payment [and] receipt by each would not have changed the nature and case at all. [The] Remedy would be at law still and each [could] go against the other … (108a)
LANGDELL: I think [the idea] may now be considered as abandoned…. Vice Chancellor Turner was an able judge, but this opinion is unfortunate and did much to confuse the subject. It was later substantially retracted by him. (108a, 109a)
[Whispering.]
PARKER: So it is not sufficient in order to maintain equity assumpsit to show that case is too complicated for a jury? (109a)
LANGDELL: That is a different point, and I see no sense in it. (109a)
[Some clapping.]
This [ruling by Turner] would try every action at Common Law. I think any way [that such] a reference[?] would only be ordered on consent. (109a)
[Pause. Student1 raises hand.]
Yes?
STUDENT1: There is a local custom in N[ew] E[ngland] of suing on an ac[count] annexed. That had its origin in the fact that originally there was no Court of Chancery in New England. (109a) [124]
PARKER: [Breaking in.] Nonsense, no [local custom arose] from lack of equity jurisdiction [in New England], there were the common counts whose place it supplies. (109a) [125]
LANGDELL: [Ignoring Parker] Mr.———, I should like a little more precision in the use of terms. (Schofield, 275) What did you say?
[Pause]
STUDENT1: I said: There is a local custom in N[ew] E[ngland] of suing on an ac[count] annexed…. (109a)
LANGDELL: An account annexed?
STUDENT1: Well … yes …
Langdell smiles and then begins to laugh loudly as the class joins in uncertainly. [126] Finally, he collects himself and dismisses the class, telling them to find out all they can about “accounts annexed” for the next meeting.
V”Damn Rot”—”Langd[ell] Now Says Opp[osite].” A Class Discussion of October-November 1875 in Langdell’s “Jurisdiction and Procedure in Equity”
During the academic years 1874-75, 1875-76, and 1876-77, Langdell annually taught the course “Jurisdiction and Procedure in Equity,” which became an area of his special expertise. Over this same period he published casebooks on the topic, which were drawn together in an 1878 edition that has sometimes been confused with its predecessors in bibliographies of Langdell. In 1875 he published Cases in Equity Pleading, Selected with Special Reference to the Subject of Discovery … [Part I], which ends in the middle of a case on page 400. This break demonstrates how Langdell’s casebooks appeared in installments and various imprints even within the year of their publication announced on the title page. In 1876 there appeared Cases in Equity Pleading … Part II, taking up from Part I in the middle of the case on page 401 and continuing through page 708. Appended was Summary of Equity Pleading with its own “Contents” page, “Table of Cases,” and pagination through page 120, followed by an extensive topical index.
In assembling these casebooks, Langdell relied heavily upon John Mitford’s A Treatise on the Pleadings in … Chancery, [127] which he quoted in long marginal annotations in his copy. [128] Despite this heavy reliance, the 1995-96 review of Langdell’s writings could not locate a single copy of Mitford’s work in HLS library. Responding to this apparent lacuna, Special Collections Librarian David Warrington searched a cache of uncatalogued materials and discovered one copy. Remarkably, the few annotations on this newly discovered copy appear to be in Langdell’s hand. Even more remarkably, thirty-six cases in Mitford’s footnotes are underlined and noted by a marginal “X,” and thirty-four of these “X-ed” cases are included in Part I (1875) of Cases in Equity Pleading and constitute the great majority of the forty-four total cases in the casebook. Consequently, it is fairly certain that Langdell employed this annotated copy, LMit47, and consulted Mitford’s footnotes closely in assembling his casebook.
Also reposited in HLS Special Collections are five heavily annotated copies of Cases in Equity Pleading, Parts I or II, that provide the sources for the following reconstructed class discussion from Langdell’s course, “Jurisdiction and Procedure in Equity,” in the mid-1870s.
LEq75 is Langdell’s heavily annotated copy of Cases in Equity Pleading [Part I] (1875). The front pages are missing, so that it has been confused with the 1878 composite edition of Cases in Equity Pleading. It is significant that LEq75 has the title “Select Cases on Discovery” on page 1, because this corresponds to the title of the casebook assigned for the course taught by Langdell only during 1874-75. Hence, some of Langdell’s annotations likely pertain to that first year in which the casebook was employed.
AEq1 is a copy of Part I (1875) and a copy of Part II (1876) that were annotated by Ames and have been rebound together in a blue cover. This Part I has the title “Select Cases on Discovery” on page 1, as is found in LEq75 and in the announcement for the schedule of classes only for 1874-75. Part II of AEq1 is an early imprint of the 1876 casebook because it ends on page 703, without the case on pages 704-8, the Summary, or the index, all of which are included in a later imprint of Part II (1876) that is also reposited in HLS Special Collections. AEq1 has at least three strata of heavy annotations: a first layer in grey pencil that probably pertains to Langdell’s class during 1874-75, in which Ames likely participated. This layer is copious, elementary, and redundant of notes in LEq75. A second layer in red pen frequently overwrites the pencil, sometimes correcting and sometimes repeating the penciled annotations. This red-pen layer is discussed below. A third layer in grey pencil glosses the red-pen annotations, noting for example: “Not so—1877. This note [in red pen] erroneous.” (234a) Another penciled annotation is dated “1879 N.B.” and underscored (210a), so it appears that Ames went back to AEq1 in 1878-79 or 1879-80 when he taught this course.
VNEq75, a third copy of Part I (1875), was extensively annotated by “an unknown hand” according to the entry on the bibliographical fiche. The annotator apparently is student George W. Van Nest (Harvard A.B. 1874) of New York City, who signed the inside cover and attended HLS from Sept. 30, 1874 to 1876. The title on page 1 is “Cases in Equity Pleading,” which corresponds to the title of the casebook assigned for the course taught by Langdell during 1875-76 and thereafter. This dating also fits the occasional dates included in the glosses (147a) and the fact that “Jurisdiction and Procedure in Equity” was a second-year course for 1875-76, which was Van Nest’s second year. It is also noteworthy that Van Nest’s annotations refer to another student: “Per Almy” (129a), which reference comports perfectly with Van Nest’s classmate, Charles Almy (Harvard A.B. 1874), who attended HLS from Oct. 1, 1874 to 1876 and received the LL.B. in 1876. Some of the annotations in VNEq75 were sheared off when it was rebound.
WEq75, a fourth copy of Part I (1875), was extensively annotated by Charles L. B. Whitney (Harvard A.B. 1871) who attended HLS from Sept. 29, 1874 to 1876 and received the LL.B. in 1876. Both the dates of their attendance and the title on page 1 indicate that Whitney and Van Nest were classmates in “Jurisdiction and Procedure in Equity” during 1875-76. There are many interleaves “briefing” the cases in WEq75.
Many of the red-pen annotations in AEq1 are virtually identical with those found in both WEq75 and VNEq75, which suggests that all three were in the same class listening to the same comments by Langdell. For example, a dated reference in VNEq75 indicates that on “Oct. 29” Langdell took one position on double pleading in equity and then on “Nov. 4” reversed himself, observing to the class that his Oct. 29 view was “damn rot.” (33a) AEq1 meanwhile notes in red pen: “(L. changes his ground … )” (32a); and WEq75 notes: “Langd. now says opp.” (32a) Consequently, Ames, Whitney, and Van Nest must certainly have witnessed the same event in the same class. One may therefore conclude that all three attended the 1875-76 class of “Jurisdiction and Procedure in Equity” taught by Langdell, with Van Nest and Whitney glossing a new imprint of Part I and Ames reannotating in red pen the earlier imprint of Part I that he had glossed in grey pencil during 1874-75. That AEq1 red pen is the writing of a colleague of Langdell is suggested by an annotation in which Langdell is named familiarly: “Kit feels great difficulty in saying that bill contains changes of evidence.” (82a)
AEq2, a fifth copy of Part I (1875) bound together in a brown cover with Part II (1876) and the Summary (1877), was also annotated by Ames. On page 1 of Part I is “Cases in Equity Pleading,” which is the title of the casebook employed for the course in the academic years 1875-76 and thereafter. Both of these Parts must have been printed shortly before the appearance of the final edition of 1878, because Ames dated Part I in “1877” and refers to a case from “1878” in Part II (684a). These dates correspond to the year when Ames and Langdell co-taught “Jurisdiction and Procedure in Equity.” In addition, the tone of the annotations in AEq2 is more mature and didactic, with little of the elaboration of elementary points that is found in AEq1. Enclosed in AEq2 are copies of the printed final examinations for Langdell’s course in 1873-74 and 1874-75.
To summarize, these five annotated casebooks are related to the teaching schedule of Langdell and Ames in the following way:
1874-75 Langdell teaches “Jurisdiction and Procedure in Equity” with Part I of his new casebook and annotates his copy, LEq75. Ames attends and annotates AEq1 in grey pencil.
1875-76 Langdell teaches the course alone with Parts I and II of the casebook, but without the Summary. Langdell reannotates LEq75; Ames attends again and reannotates AEq1 in red pen, while Van Nest and Whitney attend and annotate VNEq75 and WEq75 respectively. Charles Almy, a classmate of Van Nest and Whitney who is quoted in VNEq75 (129a), also attended the class. [129]
1876-77 Langdell teaches the course using Parts I and II, likely including the Summary and further annotating LEq75.
1877-78 Langdell and Ames co-teach the course. A Summary of Equity Pleading (1877) is published separately. [130] Ames annotates AEq2, his copy of the newest imprint of Parts I and II bound together with the Summary.
1878-79 Ames teaches the course by himself, employing the newly published full edition of Cases in Equity Pleading (1878).
This diachronic presentation should not obscure the fact that LEq75, AEq1, WEq75, and VNEq75 are synchronically related by virtue of having all been glossed during 1875-76. Even more remarkable, they all refer in glosses on pages 30-35 to an event that VNEq75 dated on October 29 and November 4, 1875, in Langdell’s course, “Jurisdiction and Procedure in Equity.” [131] This event is therefore the one chosen for the following reconstructed class discussion concerning Scott v. Broadwood (1846). Apart from the rather involved question about rightful ownership of the real estate, the issue in this case concerning equity pleading is whether a plea (response) to a bill (petition) in courts of equity may be “double,” that is, state more than one response. The longstanding doctrine in equity jurisprudence was that double pleading was not allowed; only one response to a bill was permitted. In this reconstruction, AEq2 is included as the voice of Professor Ames, reflecting the arrangement of co-teaching the course in 1877-78. The voice of George Van Nest is conveyed by the glosses in VNEq75; that of Charles Whitney by WEq75. For the sake of variety, glosses from AEq1 have been attributed to anonymous students (Student1, etc.). The words of Charles Almy, who can be factually located in the course, are drawn from the printed case report, which was doubtlessly quoted in class. Where they so indicate, glosses from each of these casebooks provide the words of Langdell, whose voice is represented also by the annotations in his own casebook, LEq75.
October 29, 1875 (VNEq75, 33a)
Course in “Jurisdiction and Procedure in Equity,” Harvard Law School
LANGDELL: Mr. Almy, please state the case of Scott v. Broadwood (1846). (VNEq75, 129a)
ALMY: Yes, sir. In Scott v. Broadwood the bill alleged that Sir Andrew Chadwick, being … in the actual possession and receipt of rents of a certain piece of ground … died on the 22nd March, 1768, intestate as to his real estate … and without issue. (30, 173)
LANGDELL: Note, gentlemen, that from the time of Sir [Chadwick]’s death there were innumerable litigations up to this time as to who was his heir. Compare [the case of Chadwick v. Broadwood on] p. 173. (VNEq75, 30a)
STUDENT1: A long litigation, indeed. (AEq1, 30a)
WHITNEY: [Whispering.] An interminable litigation. (WEq75, 30a)
[Pause as students gloss the cross-references on pp. 30 and 173.]
ALMY: after deducing the title … [to the land] from Thomas Chadwick, [the plaintiff] alleged that the premisses … had come into the possession of the defendant Henry Broadwood … but the plaintiff had been unable to discover when the defendant obtained such possession, or from whom … he derived his title…. The plaintiff had commenced an action of ejectment against the defendants Broadwood and his partners, but … the plaintiff was unable to go to trial without a discovery of the contents of the leases. (30) [132]
[Student raises hand.]
LANGDELL: Yes?
STUDENT1: This is an insufficient allegation. [It] must show that contents [of the leases] will help [the] Plaintiff prove certain allegations. (AEq1, 30a)
LANGDELL: Mr. Whitney, do you agree?
WHITNEY: I do.
LANGDELL: Could you suggest a reason? [133]
WHITNEY: [Smiling.] It is not enough to say that [the plaintiff was unable to go to trial without a discovery of the contents of the leases] merely. [The plaintiff] must allege that they are essential to proving some of his allegations; if he does that, then defendant must provide [discovery] unless defendant denies it in plea[?]. (WEq75, 30a)
LANGDELL: But how can the Plaintiff state what the leases will discover before seeing them, Mr.————?
STUDENT1: At least, the Bill [ought] to show the title [is vested] in the Plaintiff at the time the action was brought … that the Plaintiff maintains a sufficient title. (AEq1, 30a)
LANGDELL: True enough. What exactly does the Bill allege, Mr. Almy?
ALMY: the bill [in the court of equity] … prayed that the defendants might make a full and true discovery of all … matters … in order that the plaintiff might give [them] in evidence at the trial [in common law and that such evidence] might be brought into court and deposited with one of the Masters of the Rolls,
[George Van Nest raises hand.]
and that the plaintiff might be at liberty to use and give in evidence the same … at the trial in the court of common law. (30-31)
[Charles Whitney raises hand.]
LANGDELL: Yes, Mr. Van Nest?
VAN NEST: I think this is wrong. [The evidence] should be deposited with the clerk in court. (VNEq75, 31a)
PROF. AMES: In fact, Mr. Van Nest, depositing with a Master of Rolls was the regular course of proceeding. (AEq2, 31a) [134]
WHITNEY: [Breaking in.] But the Master of Rolls in the Court of Equity has nothing to do with this liberty to use and give evidence in the court of common law; when [the defendant] gets his discovery he uses it in evidence … in accordance with Common L[aw] principles of evidence. (WEq75, 31a)
PROF. AMES: That is true. The bill in this respect is wrong. (AEq2, 30a)
LANGDELL: What was the response to the bill, Mr. Almy?
ALMY: The defendant, Broadwood, by an order of the court, had leave to plead two pleas in [response to] this bill … (31)
[Pause.]
LANGDELL: Continue, Mr. Almy, for there is a confusion of ideas here. (LEq75, 31a)
ALMY: … and to support such pleas by such averments, by way of answer, as might be necessary. (31)
LANGDELL: Gentlemen, note the confusion of ideas involved in this phrase. (LEq75, 31a) Recall my introduction to the course.
[Student raises hand.]
LANGDELL: Yes?
STUDENT1: [Reading scribbled notes from endpages of casebook.] A negative plea should be supported by an Answer. Though distinct, the Plea and Answer should be filed as one document. (AEq1, iva)
LANGDELL: Very good, and recall that a defendant … must answer categorically every material allegation and charge in the bill, unless … a bill contains allegations or charges which are immaterial or irrelevant to the plaintiff’s case [or] unless he has some objection which would be good in the mouth of a witness. I mean that the defendant may refuse to answer all such [incriminating] matter, having the same privileges in those respects as a witness. (Part II, Summary, #69)
[Student raises hand.]
LANGDELL: Yes, Mr.———?
STUDENT2: The double pleading here is multifarious … obviously. (AEq1, 31a, pencil)
[Murmuring.]
LANGDELL: But it is more formal to make two pleas. (AEq1, 30a)
STUDENT2: Sed quaeso. (AEq1, 30a) Only one plea is allowed in equity.
[Some hooting.]
LANGDELL: Mr. Van Nest?
VAN NEST: In fact, double pleading was allowed rarely. [The] first order allowed was in 1820. (VNEq75, 31a)
[Stamping of feet.]
LANGDELL: Well, Gentlemen, whose view is correct?
VAN NEST: [Continuing.] Gibson v. Whitehead (4 Maddock 241) (1820) [was] the first case in which it was allowed to plead double. (VNEq75, 31a; AEq1, 31a) Later the Chancellor became more liberal. (VNEq75, 31a)
LANGDELL: True enough. Double pleading was allowed in equity, though it was not a matter of course as in Common Law. (VNEq75, 31a) Could you suggest a reason, Mr. Van Nest? (Schofield, 275)
[Silence and shuffling.]
Mr.————?
STUDENT1: It was always considered a privilege to plead at all at Equity…. [hence] Double pleading [was] allowed only by order and obtained with difficulty. (AEq1, 31a)
LANGDELL: Very good.
[Class notes this in margin. AEq1 overwrites his assertion that double pleading is multifarious. (31a)]
Now, what does each of the two pleas address?
STUDENT2: The first plea covers the whole bill. In the second plea, each part goes only to part of the bill. (AEq1, 30a)
LANGDELL: Please tell us more about the nature of the first plea.
[Silence.]
LANGDELL: Mr. Van Nest?
VAN NEST: The first plea [is] affirmative … (VNEq75, 30a)
LANGDELL: Yes, I think this [is] affirmative. (WEq75, 31a)
[Ames gestures.]
Professor Ames?
PROF. AMES: I believe this is a Negative Plea. (AEq2, 31a) [135]
[Silence.]
LANGDELL: Well … upon reflection, I think you may be right. Yes, I think this [plea is] negative. (“L.” cited on WEq75, 31a)
Yes, in fact, this negative plea affirms [a] negative—len! (LEq75, 31a)
[Class begins to annotate texts amid whispering:]
STUDENT1: What does he mean?
STUDENT2: The Plea [is] negative. (AEq1, 31a)
WHITNEY: L[angdell] is changing his opinion. (WEq75, 31a)
[Van Nest crosses out first plea affirmative and glosses: L[angdell]—neg. on 30a, and Negative plea on 31a. Whitney does likewise. (31a)]
LANGDELL: No, cross that out. (Cross out on LEq75, 31a)
[Pause.]
Better to say: the first plea is affirmative in form, being a plea of fine … but it is negative in effect, being a denial of the plaintiff’s title. (Part II, Summary, #109) [136]
[Student raises hand.]
LANGDELL: Yes?
STUDENT1: The pleadings in this case [seem] extremely accusative. (AEq1, 31a)
VAN NEST: [Interrupting.] So the first plea [is] affirmative, being a plea of fine? (VNEq75, 30a)
LANGDELL: No, negative. (VNEq75, 30a)
STUDENT2: But a plea of fine is affirmative. (AEq1, 31a)
LANGDELL: affirmative in form … negative in effect. (Part II, Summary, #109) Gentlemen, I should like a little more precision in the use of terms. (Schofield, 275) Other points to note about the first plea?
VAN NEST: This plea [is] a defence to the whole. (VNEq75, 31a)
STUDENT1: [Breaking in.] That was already said.
[Clapping and stamping.]
LANGDELL: What is missing from the first plea, Mr.——?
STUDENT2: No answer [is made] in support of the first plea, as there should be. (AEq1, 34a)
STUDENT1: [Breaking in.] Yes, No answer in support and No order made [by the Vice-Chancellor] as to this Plea. (AEq1, 30a)
LANGDELL: Very good, gentlemen. And when we say [that a] negative plea needs [an] answer we mean what? (WEq75, interleaf 30-31)
[Whitney raises hand.]
LANGDELL: Mr. Whitney?
WHITNEY: We mean that the Bill is properly drawn and that [the] plea denies something actually in the Bill. (WEq75, interleaf 30-31)
LANGDELL: Well said. Let us conclude now, and begin with the second plea at our next class.
[Class Resumes. November 4, 1875 (VNEq75, 33a)]
LANGDELL: Mr. Van Nest, please explain the substance of the [second] plea in Scott v. Broadwood. (AEq2, 32a)
VAN NEST: The second plea is a defence … being divided into two parts, the first paragraph being a plea to the first part [of the bill], and the second and third as to the rest. (VNEq75, 33a)
PROF. AMES: [Breaking in.] But what is the substance of the plea? (AEq2, 32a)
[Silence. Student raises hand.]
LANGDELL: Yes?
STUDENT1: The second Plea [is] in two parts. [The] first part [is] negative, [the] second affirmative. [(Aeq1, 30a)]
LANGDELL: Yes, the first paragraph [of the second plea] is a negative plea to part of the bill. (LEq75, 32a) Let us look more closely.
[Silence.]
PROF. AMES: Much of this would not make a good plea…. The substance of the plea which negatives[?] to the Plaintiff is found only on page 32. (AEq2, 32a)
LANGDELL: And why is that substance negative, gentlemen?
STUDENT1: This is a negative plea, for [the] Statute of Limitations gives a title to defendant. (AEq1, 31a)
STUDENT2: [Breaking in.] But in choses in action [a] Plea of Statute of Limitations is affirmative as admitting a claim and avoiding it by [providing] a bar to remedy. (AEq1, 31a)
VAN NEST: [Joining in.] I agree. The Statute denies an allegation which [the] Plaintiff has to make, viz., possession within 20 years. (VNEq75, 33a)
LANGDELL: Nevertheless, like the first plea, the first paragraph of the second plea is also affirmative in form, being a plea of the Statute of Limitations or of adverse possession, but negative in legal effect, being a denial of the existence of the leases alleged in the bill. (Part II, Summary, #109) [137]
[Pause, as students furiously take notes. AEq1 crosses out this is a negative plea and overwrites his annotations. (31a) Whitney notes: Langdell now says affirmative. (32a)]
LANGDELL: What of the second part of the second plea?
VAN NEST: The second and third paragraphs are affirmative. (VNEq75, 32a)
STUDENT2: [Joining in.] Yes, the second part of the second plea is affirmative. This [is] clear from the effect of the … Statute [of Limitations] by which the Defendant must show affirmatively that he has been in actual receipt of rents for twenty years. (AEq1, 33a)
LANGDELL: Well said. The 2nd and 3rd paragraphs of the plea are an affirmative plea … affirmative in form and in legal effect. (LEq75, 32a; Part II, Summary, #109)
[Pause.]
Perhaps [t]he first paragraph [of the second plea] is a negative plea; but the two [paragraphs] … [go] to different parts of the bill, [so] there is no duplicity. The plea is properly one in form. (LEq75, 32a)
[Pause. Ames gestures.]
Professor Ames?
PROF. AMES: This is erroneous. Both [pleas] are negative. (Part II, Summary, #109a)
[Long pause. Students shrug.]
LANGDELL: Damn rot. (VNEq75, 33a.) Professor Ames is correct.
[Students exchange glances.]
VAN NEST: The second and third paragraphs are negative? (VNEq75, 32a)
LANGDELL: Yes. I now say the plea was improperly one in form. (LEq75, 32a)
STUDENT1: Professor Langdell, [you seem to] change [your] ground and consider it improper to make two pleas. (AEq1, 30a, 32a)
WHITNEY: Yes, Professor Langdell, [are you] now saying the opposite? (WEq75, 32a)
LANGDELL: I am saying that I think it not proper to divide the second plea into two sep[arate] pleas. (attributed to “Langdell” in WEq75, 32a)
PROF. AMES: So the Summary #109 is wrong? (AEq2,30a)
LANGDELL: Precisely. We’ll begin from here next class.
Class adjourns as everyone write furiously. Langdell crosses out but the two pleas … [go] to different parts of the bill, [so] there is no duplicity. (LEq75, 32a) Van Nest crosses out affirmative, writes in negative (VNEq75, 31a), and sums up: Plea of the Statute of Limitations to a bill of discovery in aid of an action of ejectment. (VNEq75, 30a) AEq1 sums up: Bill of D[iscovery] in aid of Ejectment. 1st Plea Fine … No answer in support. No order made as to this Plea. 2nd Plea in two parts. 1st Part negative. 2nd affirmative…. Case wrong as to 1st part of 2nd plea…. (30a) Whitney inserts the word Not in the following statement: Langdell thinks it Not proper to divide the 2nd plea into 2 sep[arate] pleas. (32a) AEq2 writes Summary #109 is wrong. (30a)
VI”
But Can the Law Ever Be Said to Be Doubtful?”
A Class Discussion of February 1872 in Langdell’s First Course
Taught by Case Method with His First Complete Casebook
In October 1871, Langdell published the complete, first edition of his first casebook, Cases on Contracts. This 1022-page tome subsumed a 460-page partial edition that had been published in 1870. Langdell immediately employed this casebook in his teaching of “Contracts” at HLS. The following dialogue reconstructs a discussion that occurred in February 1872, in the course that Langdell was teaching for the first time with his first, complete casebook during the academic year 1871-72.
One primary source for the dialogue is Langdell’s annotated copy, LCon70, of the 1870, partial edition. Langdell’s copy of the 1871 edition is not extant, and, in any case, the glosses indicate that Langdell continued to teach from and annotate LCon70 even after the complete, 1871 edition appeared. [138] Langdell likely did so because the 1870 version was incorporated unchanged in the complete 1871 edition; hence, there was little reason for him to change his own copy after he began to annotate the 1870 edition.
The other primary source is James Barr Ames’s annotated copy of the 1871 edition, ACon71. Entering HLS as a student in September 1870, Ames (1846-1910) attended Langdell’s early classes taught by case method, graduated with the LL.B. in 1872, and continued his studies as a “Resident Bachelor of Laws” during the academic year 1872-73. In September 1873, Ames joined the faculty as an assistant professor and began sharing the duty of teaching “Contracts” with Langdell, employing the 1871 edition of Cases on Contracts. During his professional career, Ames became so closely associated with Langdell, whom he succeeded as dean in 1895, that he was ultimately regarded by some as the progenitor of case method, [139] though Ames himself credited Langdell entirely. [140]
ACon71 was discovered after the 1995-96 review of Langdell’s writings reposited in HLS Library did not locate a copy of the complete, first edition of Cases on Contracts (1871), which is arguably the most famous casebook ever written. Then Special Collections Librarian David Warrington discovered a heavily annotated, dilapidated, and unsigned copy in uncatalogued material. I tentatively identified the copy as belonging to Ames because, though unsigned, it was annotated in the same, peculiar manner as AEq1, which is described above and has been positively attributed to Ames. My subsequent reading of ACon71 confirmed this identification because the glosses are occasionally initialed with “J.B.A.” (ACon71, 183a, 1009a) and dated in ways that correspond with Ames’s repeated attendance and teaching in “Contracts,” which may be outlined as follows:
1870-71 Langdell was not scheduled to teach “Contracts,” but did so, and Ames likely attended this course. As happened with the first edition of most of Langdell’s subsequent casebooks, Cases on Contracts began appearing in installments during this year, with the first half bearing the 1870 imprint.
1871-72 Langdell taught “Contracts,” employing his newly published complete edition of Cases on Contracts, which appeared in October. Ames attended this course as a second-year student, as is shown by the dated annotation “Kit changes opinion Jan ’72.” (ACon71, 267a) This date is the earliest in the glosses on ACon71; however, the fact that this penciled annotation is correcting another gloss suggests that Ames may have already glossed his copy during 1870-71.
1872-73 Langdell taught both “prescribed” and “not prescribed” courses on contracts, employing his casebook for each. It appears that Ames, a resident bachelor of laws, attended this course for the second or third time because his copy is annotated “May 24, ’73.” (ACon71, 298a), when he may have been preparing to teach the course the following year. Another annotation, “See L[aw] Times July 12 ’73” (ACon71, 97a), indicates that Ames may have annotated the casebook during the summer of 1873 while preparing to teach in the following year.
1873-74 Langdell taught the “not prescribed” course on contracts, using the final third of his casebook, while Ames taught the “prescribed” course with the first two-thirds of the casebook.
1874-75, 1875-76, 1876-77 Ames taught “Contracts” by himself, using Langdell’s casebook. Penciled dates on a few pages indicate the day upon which Ames reached that point in the course. For example, on page 461, the first page after the part included in the 1870 edition, Ames noted successively: “March 4, 1875 March 10, 1876 March 7, 1877.” (ACon71, 461a)
1877-78, 1878-79, 1879-80, 1880-81, 1881-82, 1882-83 Langdell resumed teaching “Contracts” and at some point began using the second edition of his casebook, published in 1879. William A. Keener began teaching the course with Langdell’s casebook in 1883-84, and neither Langdell nor Ames taught the course again.
This pattern of repeated attendance and teaching by Ames between 1870 and 1877 is reflected in the layers of glosses in ACon71, which was annotated at least seven times, and probably nine or ten times. The earliest layer, indicated by its tentative tone and some dates from 1872 and 1873 (97a, 267a, 298a), is in black pencil and is interwoven with a second layer in black pencil that crosses out earlier penciled annotations (50a, 65a, 338a, 342a) or observes: “This note incorrect.” (236a) A third layer, in red pen, frequently overwrites the two penciled strata, sometimes correcting them and sometimes repeating them in a kind of shadow, as though Ames were reaffirming his previous comments. This red-pen layer has a didactic, authoritative, even dismissive tone (see 338a-42a) and poses few questions. I am inclined to date it from the mid-1870s when Ames was teaching the course by himself, although a cross-reference given at one point between the 1871 and 1879 editions (23a) indicates that some of these glosses in red pen were made after 1879. This red-pen layer is interwoven with and crossed out by another layer in black pencil (see 229-35) that includes dates from 1876 and 1877 (339a, 406a). A fifth layer of annotations consists of extensive underlining and X-ing in blunt red pencil, whose significance lies in the fact that it is identical to that found in Langdell’s copy, LCon70. A sixth layer was written in black pen, and largely replaces the red-pen layer as the “instructor’s voice” in the second half of the casebook, overwriting the penciled annotations (641a). A seventh layer, in blue pen, appears to be the latest, having at least one reference to the 1890s (15a). Finally, there are idiosyncratic annotations, such as a tiny, penciled gloss upon an earlier annotation: “Not so. J.B.A. 1897” (505a). This reference demonstrates the tentativeness that must characterize any scheme of dating the glosses. [141]
The following class discussion can be dated to February 1872 with some confidence because the case under consideration falls between an early bound of “Jan ’72” that Ames included in a gloss on a prior case (267a) and a later bound of “Mar ‘4” that he noted subsequently (461a). However, the layering of annotations means that this reconstruction inevitably draws upon several strata of commentary. The great majority of glosses in the reconstruction comes from the penciled annotations that can confidently be regarded as the earliest in the casebook and dated from the early 1870s when Ames was a second-year student and a resident bachelor of laws. But some of Ames’s comments in red pen, which I attribute to the period between 1873 and 1877 when Ames taught “Contracts,” are also included. These comments are cited as “ACon71, red” below.
This reconstructed class discussion addresses Longridge and Others v. Dorville and Another, decided in England in 1821, and included in Cases on Contracts at pages 308-11. Longridge was chosen because it prompted some interesting and illustrative annotations. In addition it raises the issue of the doubtfulness of law and and calls into question the longstanding portrayal of Langdell as a dogmatic purveyor of his own orthodoxy. Longridge comes after 120 pages of cases developing the doctrine on the question of when forbearance from suing provides a sufficient consideration to support a promise and establish a bilateral contract. In other words, does your promise to pay me in return for my not suing you establish a legal contract between us? If my prospective suit has no foundation in fact or law, then my not suing you is worthless, and I am giving no consideration sufficient to support the promise and establish a binding contract between us, according to the doctrine of the time. “Forbearance of an unfounded suit is no forbearance at all.” (291) But the question in Longridge is more involved, namely, whether “the giving up of a suit, instituted to try a question respecting which the law is doubtful, is a good consideration to support a promise.” (311) That is to say, if you promise to pay me for not suing you on grounds that are legally doubtful, is there still a contract established between us? This question raises the issue of whether and when the law may be doubtful.
While the guidelines for reconstruction, discussed above, obtain here, it should be observed that, because ACon71 is the only student voice, the copious glosses have been distributed to a number of anonymous students (Student1, etc.), rather than portraying a dialogue between Langdell and a single student, Ames. It also bears noting that the narrative structure in the following reconstruction factually portrays how Langdell led his students around the casebook. [142] It does so by following the annotated and printed cross-references in the copies of Langdell and Ames. The reconstructed class discussion thus opens in the middle of the casebook at Longridge, jumps toward the front, and then moves back following the annotated cross-references, the order of the casebook, and the doctrinal logic, all of which coincide for Langdell. Finally, the discussion concludes where it began at Longridge with the provocative consideration of whether the law can be doubtful. In this way, the narrative structure adheres to both the historical and doctrinal record.
February 1872
Course on “Contracts,” Harvard Law School
LANGDELL: Gentlemen, before taking up the case of Longridge v. Dorville today, let us review the doctrine concerning “consideration,” namely the impelling influence which induces a contracting party to enter into a contract. (Black’s, s.v.) What specifically may be regarded as a consideration, Mr.————?
STUDENT1: Justice Holroyd seems to address this in Longridge.
LANGDELL: Yes?
STUDENT1: Any act of the plaintiff … from which the defendant derives a benefit or advantage, or any labor, detriment, or inconvenience sustained by the plaintiff, is a sufficient consideration to support a promise and thus establish a contract. (311)
LANGDELL: And what kind of contract, specifically?
STUDENT1: A bilateral contract. (ACon71, 308a)
LANGDELL: In what sense does forbearance from suing fit Justice Holroyd’s conception?
[Student2 raises his hand.]
LANGDELL: Yes?
STUDENT2: Justice Holroyd, again, states, the consideration of forbearance [from suing] is a benefit to the defendant…. The authorities cited proceed on that ground. (311)
LANGDELL: And what are the early authorities?
STUDENT2: Davis v. Reyner?
LANGDELL: Remind us about Davis v. Reyner, Mr.———?
STUDENT2: Uh … an individual devised a legacy to [Davis], and made [Reyner] executor. Later, upon Davis intending to sue [Reyner] for the legacy, [Reyner] in consideration of forbearance promised to pay Davis. But Reyner did not pay, so Davis then brought suit on the grounds that Reyner did not fulfill his promise to pay. (267)
LANGDELL: And the ruling?
STUDENT2: In 1671 the judgment was for Davis.
LANGDELL: Is this ruling sound, Mr.——?
STUDENT2: I think so.
LANGDELL: Could you suggest a reason to justify it? (Schofield, 275)
STUDENT2: Well, Reyner had made his own promise in consideration of forbearance, and a forbearance of suit for a legacy is a sufficient consideration for a promise to pay. (267)
LANGDELL: Well done, Mr.———.
[Mumuring among the students. Ames raises hand.]
LANGDELL: Mr. Ames?
AMES: But only last month, Professor Langdell [you] thought this case could not be sustained. (ACon71, 267a)
LANGDELL: Did I, Mr. Ames? Could you suggest a reason for that view?
AMES: You said that there is no suit at Common Law for legacy, but there is in Spiritual court. [143] (ACon71, 267a)
LANGDELL: I’ve changed my opinion, Mr. Ames. (ACon71, 267a)
[Pause. Some students smile, having seen this before. Ames notes in margin Kit changes opinion. (ACon71, 267a)]
I think now that the judgment would be de bonis propriis. (ACon71, 267a)
[Students roll their eyes, while Ames writes down, the judgment would be de bonis propriis. (ACon71, 267a)]
LANGDELL: Now what is a judgment de bonis propriis, Mr.——?
STUDENT1: Uh … I’m not sure.
LANGDELL: Can anyone help Mr.——?
[Ames raises hand.]
LANGDELL: Yes?
AMES: A judgment de bonis propriis [is] a judgment against an administrator or executor to be satisfied from his own property, and not from the estate of the deceased. (Black’s, s.v.)
LANGDELL: Exactly, Mr. Ames. But this is beside the central point, which is that forbearance to sue is a good consideration for a promise, although matters are generally not this simple, as we then saw in …
[Langdell looks around expectantly.]
STUDENT3: [Eagerly] Oble v. Dittlesfield? (267)
LANGDELL: Yes, Mr.———, although this [case] should come after Davison v. Hanslop, the next one in the casebook. (LCon70, 267a)
STUDENT3: Oh.
[Ames notes This case should follow Davison v. Hanslop. (ACon71, 267a)]
LANGDELL: Never mind, Mr.———. [Smiling.] It was the editor’s misjudgment. What was the complication in Oble v. Dittlesfield?
STUDENT3: [Brightening.] J. S. was indebted to [Oble] in 40 pounds, and [Dittlesfield] was indebted in the like sum to J. S. so J. S. did appoint [Oble] to receive this 40 pounds from [Dittlesfield] in satisfaction for the debt due to [Oble] from J. S. Then Dittlesfield, in consideration that Oble would forbear [suing him] for a quarter of a year, promised that he would then pay Oble. (267) But Dittlesfield did not pay the 40 pounds to Oble, who then sued. Dittlesfield responded that he was not party to this agreement, whereby he should become indebted to Oble. Thus, Oble’s forbearance is not material, and … [Dittlesfield] is suable [only] by J. S. his creditor. (267)
LANGDELL: And did this triangular arrangement modify the doctrine that forbearance to sue is a sufficient consideration to establish a contract? (ACon71, 267a)
STUDENT3: Not really. The King’s Bench presumed that forbearance of assignee of creditor to sue debtor [is a] consideration. (ACon71, red, 267a)
LANGDELL: True enough, so far as it goes. But the material thing was that [Oble] should discharge J. S. from the debt. (LCon70, 268a) What are your views on this point, Mr.——?
STUDENT2: It does not appear that [Oble] either discharged … [J. S.], or gave up any right against him. (LCon70, 268a)
[Student1 raises hand.]
LANGDELL: Yes, Mr.——?
STUDENT1: I agree. It is difficult to see how, from the [case report], J. S. was discharged from [his] debt to Oble. (ACon71, 268a)
STUDENT3: [Breaking in.] But the debt is certainly assumed to be extinguished! (ACon71, 268a)
STUDENT2: [Joining in.] Yes, the Court proceed[ed] in view of extinguishment of debt of J. S. to [Oble]. Was the triangular arrangement complete for that purpose? (ACon71, red, 267a)
LANGDELL: That is precisely my question.
[Pause.]
STUDENT1: What does it mean when the case report says, J. S. did appoint [Oble] to receive this 40 pounds from Dittlesfield? (ACon71, 267, 267a)
LANGDELL: Yes, that is the key point. What does that mean?
[Silence.]
Mr.——?
STUDENT2: It seems this means that J. S. assigned the 40 pounds due from Dittlesfield to Oble. (LCon70, 267a)
LANGDELL: Well said. On this point, gentlemen, see Parsons’s Contracts [on] “Novation.” (ACon71, 268a) [144]
STUDENT3: [Whispering.] What is “novation”?
STUDENT1: [Whispering back.] The substitution of a new debt or obligation for an existing one. (Black’s, s.v.)
STUDENT2: So “Appoint” equals “assignment with power of attorney”? And J. S. properly assigned the debt due from Dittlesfield to Oble? (ACon71, red, 267a)
LANGDELL: It would seem so, in the view of this court; and if so? (LCon70, 267a)
STUDENT2: And if so there was a good consideration, namely, [Oble’s] forbearance to sue [Dittlesfield] in the name of J. S. (LCon70, 267a)
STUDENT1: Then this [appointment] must be taken to be an assignment of the debt? (ACon71, 267a)
LANGDELL: Yes, therefore?
STUDENT1: Therefore [Oble] having [the] right to sue [Dittlesfield], forbearance [to sue Dittlesfield] was a consideration. (ACon71, 267a)
[Pause.]
LANGDELL: Now, having reexamined this doctrine that forbearance to sue is a sufficient consideration to support a promise, let us return to Longridge and consider whether such forbearance is unrestricted. Can you address this point, Mr.———?
STUDENT1: Well, if I may quote again from Justice Holroyd: the consideration of forbearance [from suing] is a benefit to the defendant, if he be liable; but it is not any benefit to him, if he be not liable. (311)
[Student raises hand.]
LANGDELL: Yes, Mr.——?
STUDENT3: I believe that we saw this same point in Brooks v. Haigh, where the Attorney General argued that there are many cases in which promises, in consideration of forbearance to sue, have been held void where there was no suit that could have been forborne. (212)
STUDENT2: [Breaking in.] And in Longridge, Justice Bayley also affirmed this point when he stated, If it had appeared in this case that the [defendants] … could not have been liable at all, … the consideration for the promise would have failed. (311)
[Silence.]
LANGDELL: Not so, Gentlemen, I believe. (ACon71, red, 311a)
[Murmuring.]
There would be a good consideration even if it were admitted that there was no cause of action. In this regard, Longridge is not distinguishable from Smith v. Monteith [on] p. 220. (ACon71, 311a) Could you suggest a reason why? (Schofield, 275)
AMES: In Smith v. Monteith [the] consideration was not forbearance at all, but discharge … from custody, which custody would have been illegal if [Smith] had known that he had no cause of action. Therefore, the discharge would have been no consideration. (ACon71, 291a)
LANGDELL: Yes, the issue turns on the knowledge of the Plaintiff, although some courts have held that Smith v. Monteith [is] distinguishable and that in forbearance, knowledge of the Plaintiff [is] immaterial, for if [the suit is] not well founded, Plaintiff [has] no right to proceed. (ACon71, 293a) [145]
[Students write furiously. Ames notes, Distinction important. (ACon71, 291a)]
LANGDELL: We will return to this distinction another time. Let us now consider when the grounds may be doubted? (213) This question brings us to Smith and Smith’s Case, which is explicitly doubted in Longridge. You recall that Smith and Smith’s Case was heard in 1583, and was the first in our discussion of Sufficiency of Consideration in General. (183) Please state the case, Mr.——?
STUDENT1: Tho[mas] Smith … lying sick of a mortal sickness, [and] being careful to provide for his … children … constituted [John Smith] overseer of his will, and ordained and appointed by his will that his goods should be in the disposition of [John]. (183)
[Student2 raises hand.]
LANGDELL: Yes?
STUDENT2: Excuse me, but I never understood the role of the overseer of the will? (183)
LANGDELL: Does anyone recall?
[Student3 raises hand.]
LANGDELL: Yes?
STUDENT3: A sort of sub-executor, who controls the property for the executor of an estate, by the law of England? (ACon71, red, 183a)
LANGDELL: Precisely. Proceed, Mr.——.
STUDENT1: Furthermore, in consideration [that Thomas] … would commit … the disposition of his goods after his death … to him, [John] promised to [Thomas] to procure the assurance of certain customary lands to one of the children and to dispose of [Thomas’s] goods after his death … for the education of the said children. (183)
[Student2 raises hand.]
LANGDELL: Yes?
STUDENT2: I have never quite understood the meaning of procure the assurance of certain customary lands here. (183)
LANGDELL: Can anyone help out Mr.——?
STUDENT3: It’s simply an old word [for] conveyance. (ACon71, 183a)
LANGDELL: Exactly.
STUDENT2: And customary lands? (183)
LANGDELL: Anyone?
AMES: In English law, it was a variety of copyhold estate (ACon71, 183a), the title for which is entered upon the court rolls … declaring the holding to be according to the custom of the manor. (Black’s, s.v.)
LANGDELL: Thank you. I must point out, Mr.———, that we have been over these points before. Let’s continue…. So, Mr.——, why would John Smith, the defendant here, agree to become the overseer and make the promise to dispose of the goods as stipulated?
STUDENT1: Well, because … as Chief Justice Wray says, such overseers [of wills] commonly gain of such disposition…. (184) And, in fact, the goods [of Thomas] … came to [John’s] hands to his great profit and advantage. (183)
LANGDELL: So John Smith promised to dispose of the goods in a certain way, expecting and ultimately receiving great profit and advantage (183) from the disposition?
STUDENT1: Yes, but John Smith evidently did not dispose of the goods as he had promised, and the executor of the estate, Lambert Smith, filed suit.
LANGDELL: And Lambert won the suit because John did not do as he promised?
STUDENT1: [Smiles.] No, Chief Justice Wray and Justice Ayliffe held that John was not bound to dispose of Thomas’s goods as he had promised because here is not any benefit … that [is] a consideration in law to induce him to make this promise; for the consideration is no other but to have the disposition of the goods of [Thomas] pro educatione liberorum. (183-84)
LANGDELL: Can you put this in your own words?
STUDENT1: [Triumphantly.] The appointment of [John] to have control of [Thomas’s] property as overseer of his estate was no good consideration for John’s promise to dispose of Thomas’s goods in a certain way. (ACon71, red, 183a)
LANGDELL: Try again. I should like a little more precision in the use of terms. (Schofield, 275)
STUDENT1: The benefit of overseeing an estate is not a sufficient consideration to support a promise about disposing of the estate.
LANGDELL: Could you suggest a reason for the ruling, Mr.——? (Schofield, 275)
STUDENT2: Well, as Chief Justice Wray says, the law presumes every man to be true and faithful if the contrary be not shewed; and therefore the law shall intend that [John Smith] hath not made any private gain to himself, but that he hath disposed of the goods of [Thomas] to the use and benefit of [Thomas’s] children according to the trust reposed in him. (184)
LANGDELL: And what can we say about this view that, even though John did benefit handsomely from overseeing the will, the law will not presume that he did; and consequently there is no sufficiency of consideration to support the promise in a binding contract? (183)
STUDENT2: Professor Langdell, [you] deemed this case bad law … on the ground that [John’s] renunciation of a right [to appoint the overseer of his property] was a sufficient prejudice to him to make a good consideration. (ACon71, 183a)
LANGDELL: So I did. Whether or not the law recognizes the benefit accruing to the overseer, Thomas has still relinquished a right by appointing an overseer, who, in turn, promises to do certain things.
[Ames raises hand.]
LANGDELL: Yes, Mr. Ames?
AMES: But if [John] might at any time have recalled the appointment, what right did he relinquish? (ACon71, 183a)
LANGDELL: Can anyone answer Mr. Ames?
[Silence.]
LANGDELL: Well, it may be better to consider John’s action as a detriment rather than a renunciation of a right. (ACon71, 183-84a) Granted, he may still recall the appointment, but to do so, he must undergo the labor and expense of renouncing the appointment that he has already made.
AMES: So the case was decided before the notion of detriment [as a consideration] was understood. (ACon71, red, 183a)
LANGDELL: Not exactly. Let us remember that each of these doctrines has arrived at its present state by slow degrees; in other words, it is a growth, extending in many cases through centuries. (vi) Can you state the matter differently than before the notion of detriment … was understood? (ACon71, red, 183a)
[Pause.]
AMES: How about, the case [was] decided before [the] notion that detriment to Pl[aintiff] might be a good consideration arrived at its present state? (ACon71, 184a)
LANGDELL: Yes, there we have a little more precision in the use of terms. (Schofield, 275) Furthermore, even if a detriment were not regarded as a consideration, the promise here might be viewed like any case of unilateral contract and upheld. (ACon71, 183a) On either ground, I would incline less to the judgment of Chief Justice Wray and Justice Ayliffe than to the opinion of Justice Gawdy, who, as you see, was of the contrary opinion. (184)
[Pause. Ames crosses out his question about relinquishing a right and writes case wrong next to the title of the case. (ACon71, 183a)]
LANGDELL: Now, let us turn to the case of Brooks v. Haigh (1840) at 213 (LCon70, 184a), where we find counsel arguing that the law of Smith and Smith’s Case may be doubted. (213) This brings us closer to the issue before us today in Longridge v. Dorville. How did Smith and Smith’s Case come to be doubted in Brooks v. Haigh, Mr——?
STUDENT3: Well, the Attorney-General correctly observed that In Smith and Smith’s Case the alleged consideration … was held not sufficient, the consideration being only to have the disposition of the goods for the benefit of the children, and not for the [overseer’s] profit. There must be some advantage to the promissor, or detriment incurred by the promissee at his request. (211)
LANGDELL: But there was an advantage to the Overseer! Indeed, there was great profit and advantage, remember? (183)
STUDENT3: Yes….
LANGDELL: Thus, only a particular kind of advantage can serve as a consideration, according to Smith and Smith. And what is that kind?
STUDENT3: Um….
LANGDELL: Look further in the Attorney General’s argument. (212)
STUDENT3: The advantage must be such as can be appreciated in a court of law. (212)
LANGDELL: Precisely. And what is the dictum made by Lord Abinger, Chief Justice, at that point? (211)
STUDENT3: He states, In Smith and Smith’s Case … the court would not presume that the [Overseer] … was to reap a pecuniary advantage—even though it knew he would–because his doing so would have been a breach of trust and unlawful. (211-12)
LANGDELL: So thus far in our review of the doctrine, we have seen that, on the one hand, a lawful benefit, or detriment, may serve as a consideration. But, on the other hand, a benefit that is unlawful and may not be presumed by the courts is not a sufficient consideration—at least, according to Smith and Smith.
STUDENT3: And this latter point is what is doubted—or debated—in Brooks?
LANGDELL: Yes, and …
STUDENT3: And so the Attorney General states, It is true that the giving up a doubtful point of law has been held to be a good consideration, as in Longridge v. Dorville; and it may be so where a reasonable doubt exists … (212)
STUDENT1: [Breaking in.] And, Professor Langdell, you say in the Index, citing Longridge, To render a compromise a valid consideration for a promise, it is sufficient that the claim compromised was doubtful in law or fact. (1009)
LANGDELL: No, the doubt in …
AMES: [Joining in.] But, shouldn’t the Index say that the doubt must be as to the amount, not as to the existence of the claim? (ACon71, 1009a)
LANGDELL: Gentlemen, you’re getting ahead of yourselves. The doubt concerning Smith and Smith’s case is different from the doubt concerning the merits of a suit, the forbearance of which may or may not serve as a consideration, which is the issue in Longridge.
STUDENT3: But they are intermingled in Brooks v. Haigh!
LANGDELL: That is because the two kinds of doubt both stem from doubt about the doctrine that only a lawful benefit or detriment may serve as a consideration.
[Quizzical looks.]
STUDENT1: I’m confused …
LANGDELL: Then let us turn now to 308 to take up Longridge v. Dorville, which is our topic today …
STUDENT2: [Whispering.] Why does the case come at page 308 if it’s being discussed on page 212?
LANGDELL: We’re running short of time. Please turn directly to the opinion of Justice Holroyd at 311. Mr.——, would you please state the issue, as Holroyd defines it?
STUDENT1: Let’s see…. Now the consideration of forbearance [from suing] is a benefit to the defendant, if he be liable…. The authorities cited proceed on that ground…. (311)
LANGDELL: [Interrupting.] This is as we have seen.
STUDENT1: [Continuing.] This case differs materially from those; for here a suit … is given up … the final success of which was involved in some doubt. (311)
LANGDELL: Why is the final success … in doubt, Mr.——? (311)
STUDENT1: I’m not sure.
LANGDELL: Can anyone help Mr.——?
[Silence]
See p. 290, note 8 for a summary statement, Mr.——. (LCon70, 308a)
[Class turns to p. 290. Ames writes down cross-reference to 290 n.8. (ACon71, 311a)]
STUDENT1: [Reading.] In Longridge the matter in dispute was about to be decided in a tribunal governed by the civil law, with which the [common law] judges, [and, certainly] the lay parties to the [dispute], might be presumed to be unacquainted. (290, n. 8)
[Pause.]
So doubtful means the judges are not presumed to know the civil law pertaining to this case. [ACon71, red, 310a]
LANGDELL: It would appear so, at least according to the editor of the casebook.
[Ames raises hand.]
LANGDELL: Yes?
AMES: But not knowing the law is different from doubting the law.
LANGDELL: True enough.
AMES: This note on 290 refers to not knowing the law. But can the law ever be said to be doubtful? (ACon71, 310a)
LANGDELL: Excellent question, Mr. Ames. Can the law ever be said to be doubtful? Let us see p. 291 and the view of Justice Maule. (ACon71, 311a)
AMES: Justice Maule says that Longridge is hardly consistent with some of the cases, wherein it has been laid down that no law is doubtful. Jones v. Randall is the earliest case in which a question of law is admitted to be of doubtful issue. (291)
LANGDELL: Very good Mr. Ames. Now, I should point out that Maule seems [to] misconceive this case, (ACon71, 293a) but his misconception does not bear on your question. Can you recall where Justice Maule made this same reference earlier?
[Ames writes down Maule seems [to] misconceive this case … (L.) (ACon71, 293a)]
AMES: I don’t remember.
LANGDELL: Can anyone help Mr. Ames?
[Uncomfortable silence.]
Let us look back in Brooks at about 213-214. (ACon71, 291a, 311a) Would someone check please?
STUDENT1: Yes, it’s … on 212 actually…. (ACon71, 311a)
LANGDELL: Fine, see on p. 212 [Justice] Alderson, as well. (ACon71, 311a)
STUDENT2: Justice Alderson seems sympathetic to the reservations of Maule, because he asks, What is the ground on which giving up a doubtful point of law is a consideration? To whom must it be doubtful? (212)
LANGDELL: So he does. And what is the view of Sir Follett, counsel for the defendant? (213)
STUDENT1: Sir Follett states, It is indeed asked, Who is supposed to entertain the doubt in point of law? (213)
LANGDELL: And his reply?
STUDENT1: But matters of law may be considered as doubtful to the courts; and arrangements in equity are often made on the ground of the law being doubtful. (213)
STUDENT3: [Breaking in.] On the next page, Justice Bosanquet concurs, A point may be considered [doubtful], on which learned men differ. (214)
STUDENT2: [Joining in.] Lord Abinger, too, because he says, It is carrying fiction too far to say that the courts must always know how the law will be. (214)
AMES: Nevertheless, there are cases holding that no law is doubtful, as Justice Maule says. (291)
LANGDELL: True, Mr. Ames, but whether law is doubtful or not is a question of fact. (ACon71, red, 311a)
AMES: How does one know this fact? How does one find out whether law is doubtful or not? (ACon71, 311a)
STUDENT3: [Joining in.] As Sir Follett asks, Who is supposed to entertain the doubt in point of law? (213)
[Pause, as everyone looks to Langdell expectantly.]
LANGDELL: To find out whether law is doubtful or not … [the] Judge looks into books to see what the opinions of learned men are. They may differ … (ACon71, 311a)
AMES: But, Professor Langdell, what if the opinions of learned men … differ while [the Judge] himself is perfectly clear? (ACon71, 311a) You often seem perfectly clear, while differing from the judgments in the cases.
[Students exchange smiles.]
LANGDELL: While [the Judge] himself is perfectly clear, [s]till law may be doubtful…. Opinion … is simply evidence…. Whether law is doubtful or not is a question of fact. (ACon71, 311a) As Chief Justice Abbott states in Longridge, The law might fairly be considered as doubtful [when] there [are] contradictory decisions on the subject. (310)
As for myself, Mr. Ames, you will recall that in my opening lectures in “Partnership” last year I tried to warn students that I entertain heretical opinions, which [you] are not to take as law but as what I think the law ought to be. Indeed, I specifically addressed the subject of “Consideration” in this regard. (LPar70, notebook 2, leaves 55, 56) My judgment, like the opinion of [the] parties … is simply evidence about whether law is doubtful. (ACon71, 311a)
[Pause. Silence in class, while students take notes.]
LANGDELL: Gentlemen, the hour grows late, and we have yet to consider the full import of Longridge. For our next meeting, please consider whether you concur with the holding of Justice Holroyd, who asserts that the giving up of a suit instituted for the purpose of trying a doubtful question … is a good consideration to support a promise to pay a stipulated sum by way of damage. … (311)
[Class adjourns, while students continue to write.]
VII. Conclusion
The foregoing, reconstructed class discussions attempt to convey a sense of the texture and character of Langdell’s case method during the first decade of its practice. Methodological reservations may arise concerning the reconstructions. But it is hoped that, at the least, they comport with the preceding analysis of LPar70 and LCon70 in showing that Langdell was not a closeminded teacher who dogmatically transmitted a formalized orthodoxy to his students. Rather, Langdell explicitly and not infrequently changed his mind in class, confessed his ignorance or uncertainty about points of doctrine, and asked his students to venture judgments and to challenge both his own views and those expressed by the judges and counsel in the case reports.
This portrayal does not necessarily contradict the longstanding pejorative interpretation of Langdell’s pedagogy and jurisprudence. Primary sources make clear that by the early 1890s Langdell, then in his late sixties, was “feeble” [146] and even confused at times. In a previously uncited manuscript book of lecture notes from Langdell’s “Suretyship” class of 1892-93, an unidentified student author observes at one point, “Dr. Langdell’s cravat is badly wandering. He was under a misapprehension when he said the cases were on the list.” [147] Meanwhile, Langdell’s classroom presentation was “stilted and academic and poor” [148] inasmuch as he “laid down [propositions] dogmatically.” [149]
But the late Langdell was profoundly different from the robust and heretical professor of the early period. This discontinuity confirms the periodization in his academic writings and teaching schedule that has emerged from the study of his early writings reposited in HLS Library. The discontinuity also underscores the problem of understanding the late Langdell, while it belies any monolithic explanation such as that Langdell was “an essentially stupid man.” [150] This problem cannot be fully addressed in an article that focuses on the Early Period. But I suggest that, rather than intellectual deficiencies, the confluence of four factors led to rigidifying and narrowing Langdell’s early heretical thinking and teaching.
First, after developing his understanding by surveying the cases (via his casebooks) in such fields as contract law and equity during the 1870s—a process that included advancing heretical criticisms, questions, errors, and revisions—Langdell arrived at what he regarded as “right opinion” by the early 1880s. He then shifted from developing to refining and expounding his conclusions. In other words, he began to formalize and dogmatize his understanding, and such a shift is neither unwarranted nor uncommon in the annals of scholarship and intellectual history. Nor is it unprecedented that an established scholar in his mid-fifties, as was Langdell, begins elaborating, defending, even repeating prior work, rather than broaching new topics.
Second, within the larger intellectual context of his day, Langdell’s shift correlates closely with and was confirmed by the emergence of a consensus among philosophers and scientists upon understanding intellectual inquiry primarily in the formalistic terms set forth by John Stuart Mill in A System of Logic. Mill’s central project was “to provide rules and models (such as the Syllogism and its rules are for ratiocination)” for scientific inquiry, or induction. [151] During the last half of the nineteenth century Mill’s method gained such favor that Charles S. Peirce observed in 1900, “most men whom I meet … talk the language of Mill’s Logic.” [152] This ascendance of Mill’s nomic formalism over the approach of William Whewell (which was to be reversed in the twentieth century) may have stimulated or validated, directly or indirectly, Langdell’s contemporaneous move toward formalism.
Third, the administrative burdens of serving as dean of a revolutionary professional school began to constrain the nature of Langdell’s teaching and academic writing. These administrative burdens were, of course, present from the time he assumed the deanship in 1870. But two administrative crises correlate closely with the hiatuses in his academic writing, suggesting that administrative burdens reinforced the tendency to elaborate and expound his prior work rather than to undertake new inquiry, a constraint familiar to any professor who has assumed an administrative position. The first crisis was a significant drop in enrollment that began in the late 1870s when some of the reforms of Langdell and Eliot took hold and raised academic standards. Enrollment fell about one third from 183 in 1877-78 to a low of 129 in 1882-83, [153] at which point Langdell observed in the preface to the last publication of his Early Period—as he entered a four-year drought in publication following a veritable tsunami in the 1870s—that this publication had been delayed “partly by circumstances beyond the writer’s control.” [154]
After the hiatus between 1884 and 1887 when enrollment at HLS recovered and grew, Langdell began his Middle Period of publication, which lasted until 1892 when there occurred another administrative crisis prompted by staggering increases in enrollment at HLS. Between 1890-91 and 1891-92 the number of students rose by 30 percent; between 1893-94 and 1896-97 it jumped again by 33.5 percent. [155] There was no interest in restricting this growth whereby “the Law School has become a large school,” said President Eliot, because “[i]f the Law School remain large, in spite of requiring every regular student to hold a good academic degree on admission, it will have made a valuable contribution to the better organization of professional instruction in the United States.” [156] In the 1890s, then, it was the administrative “crisis” of institutional growth that curbed Langdell’s writing. After a second hiatus between 1892 and 1897 (during which he finally escaped the administrative burdens by resigning the deanship in 1895), Langdell rapidly published a second group of law review articles in his Late Period between 1897 and 1906.
This correlation between the appearance of Langdell’s academic publications and enrollment trends at HLS.
Apart from administrative burdens, the “circumstances beyond [Langdell’s] control” included the fourth factor contributing to the rigidifying and narrowing of his intellectual viewpoint. This was the onset of blindness over the Middle and Late Periods. In 1920 C. W. Eliot poignantly recalled how blindness influenced Langdell’s life:
A striking characteristic of Professor Langdell was courage … illustrated by his going about alone on foot by day and by night in the streets of Cambridge, when he could hardly see anything, especially in the glare of bright sunshine. His daily walks between Austin Hall and his house were terrifying to onlookers, particularly after the advent of the automobile…. Then he had to trust that the chauffeurs would see that a blind man was crossing the broad street. For several years he was quite unable to go alone on an unfamiliar path. This helplessness was a great trial to a man who had always been self-reliant in high degree; but he bore the calamity with unfaltering patience. As a teacher, Langdell was a great benefactor of the legal profession, and hence of every free and orderly community. [157]
No less striking than this image is the fact that, while pointing to the psychological impact that this “helplessness” caused “to a man who had always been self-reliant in high degree,” Eliot did not link it to Langdell’s administrative, scholarly, or pedagogical work. Rather, like the relatively few other observers who have mentioned Langdell’s blindness, Eliot inserted the image as a passing note in his memorial to Langdell. Then, in the final sentence quoted above, Eliot abruptly shifted the topic to Langdell’s teaching as though that were a new and unrelated topic. However, just as Langdell “was quite unable to go alone on an unfamiliar path” in Cambridge, so he doubtlessly had to follow familiar routes in his writing and teaching, lest he become hopelessly lost amid cases that he could no longer read. [158]
A subordinate line in the documentary record evidences this change, beginning near the end of Langdell’s Early Period. Having enrolled at HLS in 1880, William Schofield later observed, “Professor Langdell’s sight was somewhat defective as early as 1880. This defect increased with advancing age, and as it increased he gradually changed his method of instruction. He finally abandoned the Socratic method and stated and analyzed the cases himself.” [159] Having matriculated in 1884, Joseph H. Beale, Jr. later confirmed the interrelated pedagogical, intellectual, and emotional impact of this “defect” upon Langdell:
In our time, as a result of his failing sight, he never used the Socratic method in his teaching. He simply talked, slowly and quietly, stating, explaining, enforcing and reinforcing the principles which he found in the case under discussion. Our notebooks read like his articles on Equity Jurisdiction…. Only now and then, when some subtle point was raised by [a student] … his face would light up, and he would begin to think aloud, to the vast delight of those members of his class who could follow him. [160]
Though recalling this powerful image of the light of personal and intellectual engagement breaking through Langdell’s gathering darkness, Beale nevertheless passed rapidly by it. Either he did not appreciate its full significance or he feared that it would detract from the memory of a robust Langdell that he was affectionately trying to sustain.
James Barr Ames did similarly in his biographical essay when quoting Beale’s account of Langdell. [161] In Ames’s essay, the lack of appreciation, or the fear, is magnified by the accompanying observations that “in the earlier years of his teaching [Langdell] welcomed [students’] suggestions and criticisms” and that “in his later years … failing eyesight debarred him from many pleasures and hampered him greatly in his investigations.” [162] Here again, these references are made in passing, as though candor compelled Ames to admit Langdell’s “defect,” which he preferred not to acknowledge. Although Ames’s observations virtually recognize a shift in Langdell’s teaching and mindset, he only mentions Langdell’s blindness without acknowledging the dramatic inner struggle and transformation to which it contributed. [163]
The oversight appears again in Francis Philbrick’s editing of the testimony of Blewett Lee, who arrived at HLS in 1885 and subsequently wrote, “At that time Mr. Langdell was no longer in his prime, and on account of failing sight, compelled to use methods by which it would be unfair to judge him as a teacher.” [164] While including Lee’s letter as part of his 1926 collection of student letters concerning Langdell’s teaching, Francis Philbrick edited out this sentence. [165]
But Langdell could not edit out the impairment. By the mid-1890s he “was almost blind and his course was extremely unsatisfactory…. I saw him at his worst,” Clarke B. Whittier later observed. [166] “[A]s his eyesight became impaired, he was driven to give up the best of his method, and lectured…. It has been intimated that he was not a great teacher—but not … by those who had the great privilege of sitting under him in the early years of his professorship, when he was at his best.” [167]
Blindness must have been a significant factor in changing the psychology and intellect of the man who appears in the casebooks and writings of the Early Period. Psychological research about the effects of the onset of blindness, particularly in adulthood, has identified many of the same intellectual and emotional characteristerics among the recently blinded that are attributed to Langdell and regarded as defects in his intellect or heart. The reaction to blindness “usually occurs in stages, the first being one of shock, the second, one of depression.” [168] According to some studies, this reaction is manifested “in such characteristics as introversion, neuroticism, [and] mental rigidity in problem solving, physiological response to frustration … and general adequacy of adjustment.” When “blindness [is] acquired later in life … the loss is inevitably traumatic. Blindness will then disrupt established patterns of communication, motility, work, recreation, self-attitudes, body image, and other aspects of self-awareness.” [169]
Thus, it is not surprising that Langdell ultimately appeared to be “dogmatic,” [170] “stupid,” [171] or “neurotic” [172] or an “emotional cripple.” [173] Indeed, Jerome Frank, Grant Gilmore, and those who followed them in “trashing” Langdell were evidently correct in their assessment of the “feeble,” nearly blind, seventy-year-old Langdell who “was quite unable to go alone on an unfamiliar path” whether “in the streets of Cambridge” or in the jurisprudence of the United States toward the end of the nineteenth century. Yet, there is another half of the story to tell.
When Langdell’s teaching schedule and a more accurate bibliography of his works are reviewed, a striking periodization in his intellectual work becomes apparent. When the writings of the Early Period are then carefully examined, there appears a self-proclaimed “heretical” teacher and thinker, whose orthodox “right opinions” are advanced with the tentative certainty reminiscent of the historical Socrates, as seen in the reconstructed class discussions above. This image is confirmed by a subordinate line in the documentary record, testifying that Langdell’s teaching and writing shifted from tentative inquiry in the 1870s to increasingly formalistic and dogmatic exposition in the 1880s and 1890s. When considered within the context of Langdell’s intellectual, professional, and personal life, the shift may be attributed to the warranted conviction that the fruits of his early inquiry needed defense and exposition, to the contemporary intellectual consensus preferring Mill’s formalistic view of inquiry over that of Whewell, and to the draining administrative burdens that left little energy for new inquiry and reinforced the desire to elaborate and expound prior conclusions. Above all, the shift constituted Langdell’s response to the onset of blindness, a condition that can induce emotional and intellectual rigidity, evincing the desire to regain self-reliance in a world in which one has become vulnerable.
Appendix I
A Chronological Bibliography of C. C. Langdell’s Academic Writings [174]
The Early Period (1870-1883)
1870
“Notebooks of Lectures on Partnership and Commercial Paper [1870-71],” 2 vols. Bound Manuscript Collection, Harvard Law School Library.
A Selection of Cases on the Law of Contracts with References and Citations … Prepared for Use as a Text-Book in Harvard Law School (Boston: Little, Brown, 1870), 460p. This often cited imprint was the first half of Langdell’s initial casebook.
“Memoranda Concerning Law School Students, September, 1870, to July, 1873.” Bound Manuscript Collection, Harvard Law School Library. 112p. In this notebook, Langdell recorded the name, home, formal educational background, and other preparation of each student who was already studying at the law school during the academic year 1869-70, when Langdell arrived, or who was admitted to study thereafter. His notes end in July 1873.
1871
A Selection of Cases on the Law of Contracts with References and Citations … Prepared for Use as a Text-Book in Harvard Law School (Boston: Little, Brown, 1871), 1022p. This volume subsumes the 1870 edition and contains Langdell’s widely quoted preface explaining and justifying his case method in Baconian and Darwinian terms. It also includes a thirteen-page topical and doctrinal index that was later expanded into a “Summary,” published at the end of the second edition of Cases on Contracts (1879) and separately in 1880.
1872
A Selection of Cases on Sales of Personal Property with References and Citations … Prepared for Use as a Text-Book in Harvard Law School (Boston: Little, Brown, 1872), vol. 1, 1039p. This volume includes a nineteen-page, topical and doctrinal index. Despite his intention announced in the prefatory note, Langdell never published a second volume or second edition.
1871-1876
“Notebooks on Civil Procedure at Common Law, 1871-1876,” 4 vols. Bound Manuscript Collection, Harvard Law School Library. These notebooks contain lecture notes and commentary from courses on civil procedure taught annually with “cases” but “no textbook” by Langdell between 1871 and 1876. Thus, they represent an interim pedagogical stage between lecturing with textbooks and case method teaching.
1875
Cases in Equity Pleading, Selected with Special Reference to the Subject of Discovery … Prepared for Use as a Text-Book in Harvard Law School [Part I] (Cambridge: Printed for the Author, [1875]). This volume ends in the middle of a case on p. 400.
1876
Cases in Equity Pleading … Part II (Cambridge: Printed for the author, [by the Press of John Wilson], 1876), 708p. This volume takes up from Part I in the middle of a case on p. 401 and continues through p. 708. Appended is Summary of Equity Pleading with its own “Contents” page, “Table of Cases,” and pagination through p. 120, followed by an extensive topical index.
1877
A Summary of Equity Pleading (Cambridge: Charles W. Sever, 1877), 130p.
1878
Cases in Equity Pleading, with Special Reference to the Subject of Discovery … Prepared for Use as a Text-Book in Harvard Law School [no reference to 2d ed.] (Cambridge: Printed for the author, 1878), 708p. This volume combines Part I (1875) and Part II (1876), without including the Summary (1877).
1879
Cases on Equity Jurisdiction ([Cambridge]: [1879-1880?]), Parts 1-3(?). In 1879 Langdell began issuing preprinted installments of this casebook, which he anticipated compiling into a completed edition, as he had in the past. The fact that the parts were issued sporadically over the next four years and that the casebook was never completed indicate that by 1880 his expectations were beginning to exceed his capacity to complete his writing.
A Selection of Cases on the Law of Contracts with a Summary of the Topics Covered by the Cases … prepared for Use as a Text-Book in Harvard Law School, 2d ed. (Boston: Little, Brown, 1879), 1 vol. in 2 parts, 1116p., with a summary appended.
1880
A Summary of the Law of Contracts (Boston: Little, Brown, 1880). Langdell states that this is a separate publication of the appendix to the 1879 casebook, with some changes in form and virtually none in content (p. v.).
1883
A Summary of Equity Pleading, 2d ed. (Cambridge: Charles W. Sever, 1883), 282p.
Cases on Equity Jurisdiction ([Cambridge]: [1879-1883?]), 369p. This version includes the balance of Part 5, pp. 242-369. Langdell never completed the work and finally abandoned it in about 1891.
In about 1883 Langdell’s Early Period ended with a temporary cessation in his academic writing, which extended until 1888.
The Middle (1888-1892) and Late Periods (1897-1906)
This bibliography has been composed by modifying the entries in “Christopher Columbus Langdell, 1826-1906” (unpublished typescript distributed by Reference Desk, Harvard Law School Library, [1996]), in light of a comparison with the original articles. In addition to the academic writings listed below, Langdell wrote three, brief, commemorative statements: “Harvard Celebratory Speeches: Professor Langdell,” Law Quarterly Review 9 (1887): 123-25; “The Harvard Law School, 1869-1894,” Harvard Graduates’ Magazine 2 (1894): 490-98; “[Address of Dean C. C. Langdell],” Report of the Ninth Annual Meeting [of the Harvard Law School Association] … in especial Honor of Christopher Columbus Langdell (Boston: Harvard Law School Association, 1895), 41-48, partially reprinted as “The 25th Anniversary of Prof. C. C. Langdell as Dean of Harvard Law School,” American Law Review 29 (1895): 605.
1888-1892
“A Brief Survey of Equity Jurisdiction,” Harvard Law Review 1 (1888): 55-72, 111-31, 355-87; Harvard Law Review 2 (1889): 241-67; Harvard Law Review 3 (1890): 237-62; Harvard Law Review 4 (1891): 99-127; Harvard Law Review 5 (1892): 101-38.
“Manuscript Book of Lecture Notes taken by an unidentified student in suretyship class taught by C. C. Langdell in 1892-3.” Bound Manuscript Collection, Harvard Law School Library. These notes are verbatim transcripts, inasmuch as the student quotes Langdell in the first person, while also making occasional remarks about Langdell in the third person.
1897
“A Brief Survey of Equity Jurisdiction,” Harvard Law Review 10 (1897): 71-97. This article and those from the Middle Period were later collected together and reprinted as A Brief Survey of Equity Jurisdiction, being a series of articles reprinted from the Harvard Law Review (Cambridge: Harvard Law Review Association, 1905), 303p.
“Discovery under the Judicature Acts of 1873, 1875,” Harvard Law Review 11 (1897): 137-57, 205-19; 12 (1898): 151-75.
1898
“The Creation and Transfer of Shares in Incorporated Joint-Stock Companies,” Harvard Law Review 11 (1898): 536-38.
1899
“The Status of Our New Territories,” Harvard Law Review 12 (1899): 365-92.
“Patent Rights and Copy Rights,” Harvard Law Review 12 (1899): 553-56.
1900
“Classification of Rights and Wrongs,” Harvard Law Review 13 (1900): 537-56, 659-78.
1901
“Mutual Promises as a Consideration for Each Other,” Harvard Law Review 14 (1901): 496-508.
1903
“The Northern Securities Case and the Sherman Anti-Trust Act,” Harvard Law Review 16 (1903): 539-54.
“The Northern Securities Case under a New Aspect,” Harvard Law Review 17 (1903): 41-44.
1904-1905
“Equitable Conversion,” Harvard Law Review 18 (1904): 1-22, 83-104, 245-70; 19 (1905): 1-29, 79-96, 233-49, 321-34. These articles on equitable conversion were combined with the 1905 collection of reprinted articles and issued in a new edition of 1908.
1906
“Dominant Opinion in England during the Nineteenth Century in Relation to Legislation … ,” Harvard Law Review 19 (1906): 151-67.
Appendix II
Key to Abbreviations of C. C. Langdell’s Manuscripts and Annotated
Copies of His Writings Appearing during His Early Period and Reposited in HLS Library
The following abbreviations were devised by this author in the course of a continuing review, commenced in 1995, of Langdell’s writings reposited in HLS Library.
ACon71 Langdell, Cases on Contracts (1871), annotated by Ames.
ACon79 Langdell, Cases on Contracts (1879), Part I annotated by Ames.
AEq1 Langdell, Cases in Equity Pleading [Part I] (1875) and Part II (1876), annotated by Ames in the mid-1870s.
AEq2 Langdell, Cases in Equity Pleading [Part I] (1875) bound together with Part II (1876) and the Summary (1877) and annotated by Ames in the mid-1870s subsequent to AEq1.
LCon70 Langdell, Cases on Contracts (1870), annotated by Langdell.
LCon79 Langdell, Cases on Contracts (1879), Parts I and II annotated by Albert French Lane (LL.B. 1885) between 1882 and 1884.
LEq75 Langdell, Cases in Equity Pleading [Part I] (1875), annotated by Langdell in the mid-1870s.
LMit47 Mitford, (Lord Redesdale), A Treatise on the Pleadings in Suits in the Court of Chancery (1847), lightly annotated by Langdell in the early 1870s.
LPar70 Langdell, “Notebooks of Lectures on Partnership and Commercial Paper.” 1870-71.
PEq79 Langdell, Cases on Equity Jurisdiction (1879-83), Parts 1-5, annotated by Edmund M. Parker (LL.B. 1882) between 1879 and 1882.
VNEq75 Langdell, Cases in Equity Pleading [Part I] (1875), annotated by George W. Van Nest in a class taught by Langdell in 1875-76.
WEq75 Langdell, Cases in Equity Pleading [Part I] (1875), annotated by Charles L. B. Whitney in a class taught by Langdell in 1875-76.
Appendix III
Schedule of Courses Taught by C. C. Langdell during his Tenure at HLS
and of Courses Taught by J. B. Ames during Langdell’s Early Period
This schedule of the courses taught by Langdell derives from both the prospective annual catalogues of HLS, beginning with the academic year 1869-70 when Langdell arrived as Dane Professor, [175] and the more reliable printed circulars announcing the start of classes at HLS during Langdell’s tenure. [176] These sources were checked against the annual reports of the Dean of the Law School in which retrospective descriptions of course offerings and teaching assignments were sometimes included. [177]
1869-70
Arriving at mid-year as Dane professor, Langdell taught two courses during spring semester:
—”Negotiable Paper”
—”Partnership”
1870-71
—”Civil Procedure at Common Law” (required)
—”Negotiable Paper and Partnership” (elective courses)
—”Contracts” (required). Langdell introduced the case method of teaching, employing his first casebook.
—”[Sales of] Personal Property” (elective and required courses). Langdell wrote in his annual report for this year that he prepared and employed a casebook in this course, but it was apparently not published until 1872.
Ames (Harvard A.B. 1868) entered HLS in September 1869; Langdell was elected Dean of HLS in September 1870.
1871-72
—”Contracts,” using Langdell, Cases on Contracts (1871)
—”Civil Procedure at Common Law,” employing “cases in pleading” and “no text book”
—”Sales of Personal Property,” using Langdell, Cases on Sales (1872)
Ames completed his second and final year as a student at HLS, receiving the LL.B. in 1872.
1872-73
—”Contracts” (required), using Langdell, Cases on Contracts (1871)
—”Contracts” (elective), using Langdell, Cases on Contracts (1871)
—”Civil Procedure at Common Law,” using “cases in pleading” and “no text book”
Ames and three other graduates were appointed “Resident Bachelors of Laws.”
1873-74
Langdell taught:
—”Contracts” (elective), using second half of his Cases on Contracts (1871)
—”Jurisdiction and Procedure in Equity,” with “no text book”
Ames was appointed assistant professor and, having taken these two courses as a student and likely audited them as a resident bachelor of laws, taught:
—”Sales of Personal Property,” using Langdell, Cases on Sales (1872)
—”Contracts” (required), using Langdell, Cases on Contracts (1871)
Ames and Langdell co-taught “Civil Procedure at Common Law,” hearing students pleading cases on Friday afternoons.
1874-75
Langdell taught:
—”Civil Procedure at Common Law” (second year), with “no text book”
—”Jurisdiction and Procedure in Equity,” using his Cases in Equity Pleading (1875)
Ames taught:
—”Contracts,” with Langdell, Cases on Contracts (1871)
—”Torts,” with his Cases on Torts ([1874])
—”Civil Procedure at Common Law” (first year), “with text book”
—”Bills of Exchange and Promissory Notes”
1875-76
Langdell taught:
—”Civil Procedure at Common Law” (first year), with Ames’s Cases on Pleading (1875)
—”Civil Procedure at Common Law” (second year)
—”Civil Procedure under the New York Code”
—”Jurisdiction and Procedure in Equity,” with his Cases in Equity Pleading (1875-1876)
Ames taught:
—”Contracts,” with Langdell, Cases on Contracts (1871)
—”Torts,” with his Cases on Torts ([1874])
—”Bills of Exchange and Promissory Notes,” with “no text book”
1876-77
Langdell taught:
—”Civil Procedure at Common Law,” using Ames, Cases on Pleading (1875)
—”Civil Procedure at Common Law” (second year)
—”Civil Procedure under the New York Code”
—”Jurisdiction and Procedure in Equity,” with his Cases in Equity Pleading (1875-1876)
Ames taught:
—”Contracts,” using Langdell, Cases on Contracts (1871)
—”Torts,” using his Cases on Torts ([1874])
—”Bills of Exchange and Promissory Notes,” with “no text-book”
1877-78 [178]
Langdell taught:
—”Contracts,” with his Cases on Contracts (1871)
—”Civil Procedure at Common Law” (second year)
—”Civil Procedure under the New York Code”
Ames taught:
—”Torts,” with his Cases on Torts ([1874])
—”Civil Procedure at Common Law,” with his Cases on Pleading (1875)
—”Bills of Exchange and Promissory Notes,” with his Cases on Bills and Notes (1881) [179]
Ames and Langdell co-taught “Jurisdiction and Procedure in Equity.” Ames employed Langdell, Cases in Equity Pleading (1875-1876) for two hours weekly; Langdell led class for one hour with “no text-book.”
1878-79
Langdell taught:
—”Contracts,” with his Cases on Contracts (1871)
—”Bills of Exchange and Promissory Notes,” with Ames’s Cases on Bills and Notes (1881)
Ames taught:
—”Torts,” with his Cases on Torts (1874)
—”Civil Procedure at Common Law,” with his Cases on Pleading (1875)
—”Jurisdiction and Procedure in Equity,” with Langdell, Cases in Equity Pleading (1878)
1879-80
Langdell taught:
—”Contracts,” with his Cases on Contracts (1879)
—”Jurisdiction and Procedure in Equity” (third year), with his Cases on Equity Jurisdiction ([1879-1880?])
—”Bills of Exchange and Promissory Notes,” with Ames’s Cases on Bills and Notes (1881)
Ames taught:
—”Civil Procedure at Common Law,” with his Cases on Pleading (1875)
—”Jurisdiction and Procedure in Equity” (second year), with Langdell, Cases in Equity Pleading (1878)
—”Trusts and Mortgages”
—”Partnerships and Corporations”
1880-81
For the first time, both Langdell and Ames taught all of their courses out of published casebooks.
Langdell taught:
—”Contracts,” using his Cases on Contracts (1879)
—”Jurisdiction and Procedure in Equity” (second year), using his Cases in Equity Pleading (1878)
—”Jurisdiction and Procedure in Equity” (third year), using his Cases on Equity Jurisdiction ([1879-1880?])
Ames taught:
—”Civil Procedure at Common Law,” using his Cases on Pleading (1875)
—”Bills of Exchange and Promissory Notes,” using his Cases on Bills and Notes (1881)
—”Trusts and Mortgages,” with his Cases on Trusts (1881-82)
—”Partnership and Corporations,” with his Cases on Partnerships (1881-)
1881-82
Langdell taught:
—”Contracts,” using his Cases on Contracts (1879)
—”Jurisdiction and Procedure in Equity” (second year) with his Cases in Equity Pleading (1878)
—”Jurisdiction and Procedure in Equity” (third year) with his Cases on Equity Jurisdiction ([1879-1880?])
Ames taught:
—”Civil Procedure at Common Law,” with his Cases on Pleading (1875)
—”Trusts and Mortgages,” with his Cases on Trusts (1881-1882)
—”Partnership and Corporations,” with his Cases on Partnerships (1881-)
—”Bills of Exchange and Promissory Notes,” with his Cases on Bills and Notes (1881)
1882-83
Langdell taught:
—”Contracts,” with his Cases on Contracts (1879)
—”Jurisdiction and Procedure in Equity” (second year) with his Cases in Equity Pleading (1878)
—”Jurisdiction and Procedure in Equity” (third year) with his Cases on Equity Jurisdiction (1879-1883?)
—”Suretyship and Mortgage”
Ames taught:
—”Civil Procedure at Common Law,” with his Cases on Pleading (1875)
—”Trusts and Mortgages,” with his Cases on Trusts (1881-1882)
—”Partnership and Corporations,” with his Cases on Partnerships (1881-)
—”Bills of Exchange and Promissory Notes,” with his Cases on Bills and Notes (1881)
After teaching and co-teaching nine different courses between 1870 and 1883, Langdell subsequently taught these three courses every year until he resigned the deanship in 1895:
—”Jurisdiction and Procedure in Equity” (second year) with his Cases in Equity Pleading (1878)
—”Jurisdiction and Procedure in Equity” (third year) with his Cases on Equity Jurisdiction (1879-1883?), until 1890 when he stops using this casebook
—”Suretyship and Mortgage,” with “no textbook”
Between 1895 and 1900, in recognition of his service to the university, Langdell was allowed to drop the third course above and continue teaching the other two while on full salary. [180]
After the academic year 1899-1900, Langdell retired from active teaching. [181]
Bruce A. Kimball is Professor of Education in the Warner School of the University of Rochester, Rochester, New York. He is grateful to David R. Warrington, David deLorenzo, Stanley N. Katz, James W. Fowler, David H. Smith, Roger B. Dworkin, Daniel R. Ernst, Daniel R. Coquillette, Lewis Sargentich, Eva T. H. Brann, and four anonymous reviewers for reading this essay in various drafts and contributing their reactions, which aided greatly in revising and improving it.
Notes
1. By the end of Langdell’s deanship this potential influence was already evident to Eliot, who observed that the reforms at HLS “will have made a valuable contribution to the better organization of professional instruction in the United States,” if the HLS student body remained relatively large. Charles W. Eliot, Annual Reports of the President and the Treasurer of Harvard College, 1893-94 (Cambridge: Harvard University, 1895), 23. See also Bruce A. Kimball, The “True Professional Ideal” in America: A History (Oxford: Basil Blackwell, 1992), 198-300.
2. William P. LaPiana has provided the most detailed and informed acccount of these developments at Harvard. LaPiana, Logic and Experience: The Origin of Modern American Legal Education (New York: Oxford University Press, 1994). See, too, Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (Chapel Hill: University of North Carolina Press, 1983), 35-72.
3. I follow here the dominant view, rather than the minor historiographical tradition maintaining that Langdell’s case method was not an innovation. Space does not permit a rebuttal to this minor tradition, which has generally been advanced either by contemporaries who disparaged Langdell’s method or by subsequent observers who sought to foster the pejorative view of Langdell described below.
4. Morton Horwitz thus takes the inaugural year of Langdell’s deanship, 1870, as the starting point for the reign of “legal orthodoxy” in American jurisprudence. Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992).
5. See Thomas C. Grey, “Langdell’s Orthodoxy,” University of Pittsburgh Law Review 45 (1983): 1-53.
6. See Robert W. Gordon, “The Elusive Transformation,” review of The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy, by Morton J. Horwitz, Yale Journal of Law & Humanities 6 (1994): 137-39. I am grateful to Daniel R. Ernst for bringing this helpful reference to my attention.
7. [Oliver Wendell Holmes, Jr.], [Review of] A Selection of Cases on the Law of Contracts … by C. C. Langdell … [and] Principles of the English Law of Contract. By Sir William R. Anson,” American Law Review 14 (1880): 234.
8. Jerome Frank, “Why Not a Clinical Lawyer-School,” University of Pennsylvania Law Review 81 (1933): 907.
9. Grant Gilmore, The Death of Contract (Columbus: Ohio State University Press, 1974), 13.
10. These words of Grant Gilmore are quoted affirmatively in Michael H. Hoeflich, “Law & Geometry: Legal Science from Leibniz to Langdell,” American Journal of Legal History 30 (1986): 121, n. 100.
11. Samuel F. Batchelder, “C. C. Langdell, Iconoclast,” Bits of Harvard History (Cambridge: Harvard University Press, 1924), 318, n. 1. The article first appeared in The Green Bag 18 (1906).
12. Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America (New York: Lewis Publishing, 1908), 2: 372-74.
13. Batchelder, “C. C. Langdell, Iconoclast,” 303-23. See above, note 11.
14. Philip P. Wiener, Evolution and the Founders of Pragmatism (Cambridge: Harvard University Press, 1949; Philadelphia: University of Pennsylvania Press, 1972), 232, 235, n. 2.
15. Gilmore, The Death of Contract, 14.
16. See File of “Letters Received regarding Dean Ames, 1925-1926,” Box 1, The Francis S. Philbrick Papers, Harvard University Archives. These letters were collected by Professor Francis S. Philbrick of the University of Illinois who in 1925 and 1926 wrote to about sixty-seven prominent HLS alumni, asking their opinion of the teaching of Langdell and Ames. Philbrick received replies from forty-six and compiled excerpts from the letters in a mimeographed pamphlet entitled, “Extracts from Letters by Onetime Students under Langdell and Ames, Relative to the Attitude of Those Teachers toward the Law,” which he circulated in 1926. In 1936 Philbrick sent his entire file to Roscoe Pound, Dean of HLS, who passed it on to the library, where it was boxed and filed. I am grateful to David deLorenzo, Curator of Manuscripts and Archives, HLS Library, who told me of the file and of his belief that it had not been read prior to 1996 by any scholar working on Langdell.
17. Clarke B. Whittier, Letter to Francis S. Philbrick, 10 December 1925, Box 1, Philbrick Papers.
18. See Marcia Speziale, “Langdell’s Concept of Law as Science: The Beginning of Anti-formalism in American Legal Theory,” Vermont Law Review 5 (1980): 1-37; Anthony Chase, “The Birth of the Modern Law School,” American Journal of Legal History 23 (1979): 329-48, and “Origins of Modern Professional Education: The Harvard Case Method Conceived as Clinical Instruction in Law,” Nova Law Journal 5 (1981): 323-63; Paul D. Carrington, “Hail! Langdell,” Law & Social Inquiry 20 (1995): 691-760. The most informed and significant work in this regard is LaPiana’s, Logic and Experience.
19. John Henry Schlegel, review of The Lost Lawyer, by Anthony Kronman, and Logic and Experience, by William P. LaPiana, Law and History Review 14 (1996): 369.
20. LaPiana expresses appreciation for Langdell in an “Epilogue,” whose tone does not seem fully concordant with that in the body of the book. LaPiana, Logic and Experience, 168-70. Likewise, Carrington seems to honor Langdell by way of apologizing for him in “Hail! Langdell,” 691-760. Anthony Chase is the exception in arguing, based upon Langdell’s published writings, that Langdell’s approach to case method was virtually the “opposite” of the way it has conventionally been portrayed, particularly by Gilmore. “Origins of Modern Professional Education,” 359.
21. Langdell, A Summary of Equity Pleading, 2d ed. (Cambridge: Charles W. Sever, 1883), iv.
22. Blewett Lee, Letter to Francis S. Philbrick, 18 February 1926, Box 1, Philbrick Papers.
23. Warren, History of the Harvard Law School, 2: 460n.
24. James Barr Ames, “Christopher Columbus Langdell,” (1909), reprinted in Ames, Lectures on Legal History and Miscellaneous Legal Essays (Cambridge: Harvard University Press, 1913), 474-76.
25. The Centennial History of the Harvard Law School, 1817-1917 (Cambridge: Harvard Law School Association, 1918), 311.
26. “Christopher Columbus Langdell 1826-1906.” Unpublished typescript distributed by Reference Desk, Harvard Law School Library, [1996], 2p.
27. Full citations to Langdell’s works are given in Appendix I. Short titles are employed in this text and these notes.
28. In fact, Langdell and Ames produced the only casebooks in use at HLS until the academic year 1888-89, when John Chipman Gray and William A. Keener introduced their respective casebooks on property and quasi-contracts.
29. Those three courses were “Suretyship and Mortgage,” employing no textbook; “Jurisdiction and Procedure in Equity,” using his Cases in Equity Pleading (1878); and “Jurisdiction and Procedure in Equity,” using his Cases on Equity Jurisdiction (1879-1883) until 1890.
30. To my knowledge, this co-teaching was unprecedented in the history of American colleges and universities.
31. LCon70, 215, 234, 306, 354, 402. These glosses seem to refer to lengthy annotations in ACon71 that summarize doctrine and list full citations of between ten and thirty relevant cases.
32. ACon71 and LCon70, 12, 17, 23-25, 47, 380, 381, 411, 418. A note on a small piece of paper glued to the foot of a page appears to be in Ames’s handwriting, suggesting that he may have used Langdell’s copy in his teaching of “Contracts” in the mid-1870s (LCon70, 42). It is also possible that similar underlining in blunt, red pencil in both copies was done by one or the other.
33. See LEq75 and AEq2, 127, 151, 160, 178.
34. See Appendix III.
35. James P. Hall, Letter to Francis S. Philbrick, 8 December 1925, Box 1, Philbrick Papers.
36. Learned Hand, Letter to Francis S. Philbrick, 17 February 1926, Box 1, Philbrick Papers.
37. In private correspondence, Eliot wrote that, in his forty-year tenure as president, “the putting of Langdell in charge of the Law School was the best piece of work I did for Harvard University, except the reconstruction of the Medical School in [18]70 and [18]71, and the long fight for the development of the elective system.” “Letter to Henry S. Pritchett,” 13 April 1915. Correspondence of Charles W. Eliot, Small Manucript Collection, Harvard Law School Library.
38. The names and dollar sums are dated from May 1877 through June 1879 (v. 1, leaf 109). No connection between these figures and the text is apparent, so it seems that Langdell, in the late 1870s, wanted to tally some figures (with corresponding names and dates), grabbed this notebook with blank pages left, worked out the tally once ($21,300), crossed it out, wrote down the entire list of figures, and reworked the result, arriving at the correct sum of $25,350. The sums are considerable, too large to pertain to debts of HLS students, who do not fit the list of names in any case; and it is intriguing to infer that the sums, with names and dates, may refer to investments or to legal practice that Langdell did on the side. Eliot observed that Langdell prospered financially due, in part, to his knowledge of “farm mortgages in Iowa and other fertile Western states.” Charles W. Eliot, “Langdell and the Law School,” Harvard Law Review 33 (1919-1920): 524. It is noteworthy that Langdell also glossed this notebook. He refers to “suretyship” in a note added to the back of v. 2, leaf 42; and, in a different pen, to “an action on a promissory note” on the back of v. 2, leaf 46. Since he taught these subjects subsequently, he probably went back to this notebook.
39. This date follows from the fact, first, that Langdell taught Partnership only during that semester. Furthermore, Langdell frequently quotes from “Lindley,” giving page numbers; and my investigation reveals that these quotations and page numbers fit only the second, 1867 edition of Nathaniel Lindley, A Treatise on the Law of Partnership … , 2 vols. (Philadelphia: T. & J. W. Johnson, 1860). Since there appeared a third (1873) and subsequent editions, the dating of the lectures from 1870 correlates appropriately with the interval between Lindley’s second (1867) and third (1873) editions. Also, at one point Langdell seems to refer to a student in class: “Notice the … case mentioned by Mr. Mansfield at the last lecture” (v. 1, leaves 70-71). Among the four Mansfields who attended HLS before 1934, Langdell’s teaching of Partnership correlates perfectly with Ex. Sumner Mansfield, who attended HLS only during 1869-70. Finally, Langdell also refers to another student, whose name appears to be “Mr. Ayres” and who “in regard to drawing bills in London or New York … informs me that Brown, Shipley & Co. will draw them … for small amounts” (v. 2, leaves 54, 55). This reference fits perfectly with Russell W. Ayres of New York, who also attended HLS only during 1869-70. Both of these references indicate that communication, even during Langdell’s lectures, was not only one-way.
40. According to the printed schedule for the semester, Langdell’s class met some sixty-two times. The first notebook appears not to start at the beginning of the course and records about eleven lectures; the second notebook, which begins in mid-sentence and does not follow from the first, has about twelve lectures.
41. Given their unconventional content, it is ironic that Langdell’s teaching of these courses has been cited primarily for employing “the traditional lecture method.” Grey, “Langdell’s Orthodoxy,” 1, n. 2. As I suggest below, the lectures reveal an interesting intermediate step between lecturing and case method.
42. In the quotations here and below, ampersands, abbreviations, punctuation, and capitalization in the handwritten sources have been converted to standard English. Points of uncertainty in deciphering the annotations are indicated by dashes or question marks.
43. Isaac Preston Cory, A Practical Treatise on Accounts, Mercantile, Partnerships … Exhibiting a View of the Discrepancies between the System of the Law and of Merchants, 2d ed. (London: W. Pickering, 1839). I am grateful to an anonymous reviewer for suggesting the name of Cory and pointing to this reference.
44. Plato, Meno 96e-99c.
45. Batchelder, “C. C. Langdell, Iconoclast,” 381, n. 2; Wiener, Evolution and the Founders of Pragmatism, 232, 235, n. 2.
46. “The raw material of law, [Langdell] devoutly believed, was to be discovered in a library and nowhere else; it consisted, as he himself said, solely of what could be found in the pages of law reports.” Frank, “Why Not a Clinical Lawyer-School,” 908.
47. Stanley N. Katz has insightfully questioned whether Langdell is actually being heretical in attending to the practice of merchants, “since I had always thought the received opinion was that mercantile law depended heavily on the practice of merchants, in counter distinction to most other forms of non-statutory law. Thus practice, rather than judicial opinion, was always a potent factor in the establishment of legal rules in this area.” (Personal correspondence, 25 September 1996.) Nevertheless, even if Langdell were merely being conventional in relying on the practice of merchants in his approach to commercial partnerships and paper, this reliance contradicts the portrayal of Langdell as seeking only for the logical form of law and ignoring the social practices that inform any kind of law. I cannot find any scholarly discussion of Langdell that credits him with any sort of admission that such social practices are relevant.
48. Another source representing an interim pedagogical stage between lecturing with textbooks and case method teaching may be found in Langdell’s “Notebooks on Civil Procedure at Common Law, 1871-1876,” 4 vols., which contain lecture notes and commentary from courses on civil procedure taught annually with “cases” but “no textbook” by Langdell between 1871 and 1876.
49. Parker (Harvard A.B. 1877) attended HLS from September 1879 until 1882, when he received the LL.B. On Parker and his copy (abbreviated PEq79) see the first reconstructed class discussion below.
50. That Langdell raises these hypotheticals in class without preconceived answers and for purposes of discussion seems to be confirmed by the fact that Ames, in his annotated copy of Langdell, Cases on Contracts (1871), repeats the questions without recording any answer or rules to resolve them, as he otherwise often does (ACon71, 24-25).
51. Batchelder, “C. C. Langdell, Iconoclast,” 318, n. 1; Wiener, Evolution and the Founders of Pragmatism, 232, 235, n. 2; Whittier, Letter to Francis S. Philbrick, 10 December 1925.
52. This judgment is based on my comparison of LCon70 with ACon71 and LEq75 with AEq1 and AEq2. Langdell is not hestitant to take issue with the courts, but his contradictions are always nuanced; whereas Ames seems like an eager litigant in writing “Case wrong” beside the title, for example, of the first eight cases in AEq1 and AEq2 and in ACon71 on 633, 634, 637, 638, 640, 643, 645.
53. An additional, sixth purpose of Langdell’s annotations is to make emendations for future editions of the casebook. For example, he corrects misprints or errors in the case reports (90a) and notes “omit” (248a) or “retain” (250a) next to the title of some cases. Since this purpose is not strictly pedagogical, I do not include it among the other five.
54. Charles S. Peirce, “How to Make Our Ideas Clear,” (1878), reprinted in Collected Papers of Charles Sanders Peirce, ed. C. Hartshorn, P. Weiss, and A. W. Burks (Cambridge: Harvard University Press, 1931-1958), 5: sects. 405-8.
55. I have tentatively described this setting and sketched a framework for understanding the relationships of the Whewellian and Millian traditions of induction in “The Inductive Background of the Inception of Case Method Teaching, 1800s-1910s,” an unpublished draft chapter of a history of case method teaching.
56. See, for example, Wiener, Evolution and the Founders of Pragmatism, 232 and passim.
57. Natalie Zemon Davis, The Return of Martin Guerre (Cambridge: Harvard University Press, 1983), 106.
58. These two copies are discussed in the second reconstruction below.
59. Davis, now retired, was Henry Charles Lea Professor of History at Princeton University. The Return of Martin Guerre recreates the experience of the sixteenth-century French peasant Bertrande de Rols and the imposter Arnaud du Tilh, who posed as Bertrande’s husband, Martin Guerre, returning from fighting in the wars, until Arnaud was indicted for fraud and convicted. Davis recreates a narrative account of these events that is “in part my invention, but held tightly in check by the voices of the past” (5).
60. Schama is Mellon Professor in the Social Sciences at Harvard University. The first quarter of Dead Certainties (Unwarranted Speculations) (New York: Alfred A. Knopf, 1991) presents three different accounts of the death of British General James Wolfe during the storming of Quebec in 1759. The latter three quarters of Schama’s book, loosely connected to the first, reconstruct the widely publicized trial, conviction, and execution of Harvard chemistry professor John Webster for the sensational murder in 1849 of Boston Brahmin George Parkman. What Schama calls his two “historical novellas” (322) are told through the personal testimony of the participants, which Schama reconstructs by “selecting, pruning, editing, commenting, interpreting” the original sources (322).
61. Demos is Samuel Knight Professor of American History at Yale University. The Unredeemed Captive: A Family Story from Early America (New York: Random House, 1994) describes the 1704 raid on Deerfield, Massachusetts, by French soldiers and their Indian allies. Demos focuses his attention upon the kidnapped, four-year-old Eunice Williams, who adopted Indian ways, married a Mohawk husband, converted to Catholicism, and lived the rest of her life among her new people. Demos ventures beyond the documentary record in order “to reconstruct at least the outlines of her experience” (140) when he feels he has adequate “grounds for speculation” (110).
62. Edmund Morgan, “Hostages to Fortune,” New York Review of Books (23 June 1994): 37.
63. “It was bound to happen. Sooner or later a distinguished historian had to cross over, had to mingle the writing of fiction with the writing of history. The circumstances were ripe, the pressures were enormous. Everyone else was doing it…. The blurring of fact and fiction is part of the intellectual climate of our postmodern time…. Although historians have scarcely begun to experience the kinds of epistemological quarrels that have torn apart the literary disciplines over the past decade or so, the signs of change are ominous.” Gordon Wood, “Novel History,” The New York Review of Books (27 June 1991): 12.
64. Schama, Dead Certainties, 322. See the similar opinion in the editor’s introduction to review of Dead Certainties, by Simon Schama, American Historical Review 98 (1993): 121.
65. Eva T. H. Brann, The World of the Imagination: Sum and Substance (Savage, MD: Rowman & Littlefield, 1991).
66. Demos, The Unredeemed Captive, 22-23.
67. Ibid., 17.
68. Schama, Dead Certainties, 320.
69. Wood, “Novel History,” 16.
70. See Francis Oakley’s admirably clear and succinct review and analysis of this controversy in “‘Anxieties of Influence’: Skinner, Figgis, Conciliarism and Early Modern Constitutionalism,” Past & Present 151 (1996): 62-69.
71. See J. M. Keynes, A Treatise on Probability (London: Macmillan, 1921), chs. 18-22; Hans Reichenbach, Experience and Prediction (Chicago: University of Chicago Press, 1938), ch. 5; Rudolf Carnap, The Logic of Probability (Chicago: University of Chicago Press, 1950). This attempt fundamentally maintains “that inductive support [for a proposition] has the logical form represented by the probability statement p(L/e)=r,” meaning that “the probability of L, given evidence e, has value r.” Ronald N. Giere, Explaining Science: A Cognitive Approach (Chicago: University of Chicago Press, 1988), 26.
72. Peter J. Bowler, Evolution: The History of an Idea (Berkeley: University of California Press, 1984), 17.
73. Ernest Nagel, The Structure of Science: Problems in the Logic of Scientific Explanation (1960), 2d ed (Indianapolis: Hackett, 1979), 86.
74. Robert E. Butts, ed., “Introduction,” in William Whewell, Theory of Scientific Method, rev. ed. (Indianapolis: Hackett, 1989), 4.
75. William Whewell, “Mr. Mill’s Logic,” (1849), reprinted in William Whewell, Theory of Scientific Method, ed. Robert E. Butts, rev. ed. (Indianapolis: Hackett, 1989), 302.
76. Robert Finlay, “AHR Forum: The Return of Martin Guerre The Refashioning of Martin Guerre,” American Historical Review 93 (1988): 566, 554. See Natalie Zemon Davis, “AHR Forum: The Return of Martin Guerre ‘On the Lame,’” American Historical Review 93 (1988): 572-74, 601-3. The qualification “perhaps” points to the significant exception that few complaints are made about historians relying on anthropology, whose ethnographic method—careful observation, sifting, and reporting of evidence about the particular case—is congenial to historiography. See Demos, The Unredeemed Captive, 282, n. 2, 290, n. 69, 291, n. 79; Thomas E. Burke, review of The Unredeemed Captive, by John Demos, American Historical Review 100 (1995): 1290.
77. Finlay, “The Refashioning of Martin Guerre,” 557.
78. Davis, “‘On the Lame,’” 573.
79. Demos makes precisely the same move when, in the absence of particular data about the experience of Eunice Williams among the Mohawk, he deduces events that likely occurred to her personally from the findings of anthropologists about Mohawk life in general. Demos, The Unredeemed Captive, 139-66, 282, n. 2, 290, n. 69, 291, n.
80. Finlay, “The Refashioning of Martin Guerre,” 570.
81. Ibid.
82. Hans Reichenbach, Experience and Prediction (Chicago: University of Chicago Press, 1938), 7-10 and passim, 382-85 and passim, and The Rise of Scientific Philosophy (Berkeley: University of California Press, 1951), 230-32 and passim.
83. Schama, Dead Certainties, 322.
84. Ibid.
85. Ibid., 327. Because the absence of any verification makes it impossible to distinguish “passages [that] are purely imagined fiction” from the passages that “have faithfully followed accounts given in letters and journals” (327), Schama may be hoping that the credibility of the latter will extend to the former. But the opposite occurs. The absence of verification, even for verifiable propositions, discredits the factual, rather than validating the fictional.
86. See, for example, his notes on reconstructing experience within a Mohawk village. Demos, The Unredeemed Captive, 273, n. 1, 273, n. 11, 274, n. 14.
87. Demos’s narrative includes scarcely less historiographical discussion than his acclaimed A Little Commonwealth: Family Life in Plymouth Colony (New York: Oxford University Press, 1970), which exemplifies the “social history” from which he sees himself departing by employing narrative in The Unredeemed Captive, xi.
88. Burke, review of The Unredeemed Captive, 1290.
89. Demos, The Unredeemed Captive, 140-66.
90. After one such reconstruction, Demos observes, “This, of course, is no more than conjecture.” The Unredeemed Captive, 189-90.
91. Wood, “Novel History,” 12.
92. Finlay, “The Refashioning of Martin Guerre,” 557.
93. Davis, “‘On the Lame,’” 575.
94. Eugene Wambaugh, whose name appears on Fig. 2, graduated from Harvard College with an A.B. in 1876 and attended HLS from 1877 until 1880, when he was awarded an LL.B. Appointed professor of law at HLS in 1892 and then Langdell Professor of Law in 1903, Wambaugh resigned in 1925. On Fig. 3, the annotation mentions “Dart on Vendors.” I am grateful to an anonymous reviewer for the suggestion that this refers to J. Henry Dart, Treatise on the Law and Practice Relating to Vendors and Purchasers of Real Estate, edited by the author with William Barber, 4th ed., 2 vols. (London: Stevens, 1871). I have not been able to confirm the reference because the copy in HLS Library has been withdrawn and was apparently not microfilmed in the series of Nineteenth Century Legal Treatises. On Fig. 4, the annotation “Leake on Contracts” refers to Stephen M. Leake, The Elements of the Law of Contracts (London: Stevens, 1869), 10, 313-15. I am grateful to an anonymous reviewer for help in resolving questionable points in deciphering the annotations in these reproductions.
95. See “The Papers of Christopher Columbus Langdell” in “Index of Modern Manuscript Collection.” Unpublished typescript in Special Collections, Harvard Law School Library, n.d.
96. Here again, I am grateful for the help of members of the Special Collections Staff at Harvard Law School Library, who often helped me in deciphering questionable readings, although I am solely responsible for the final rendering and any errors that have arisen.
97. Schama, Dead Certainties, 327.
98. Demos, The Unredeemed Captive, 190.
99. The glosses frequently refer to other pages in the same annotated casebook or to other sources, and the reconstructed class discussions also quote from such cross-referenced material. For example, Langdell’s Summary of Equity Pleading, which was appended to early imprints of his Cases in Equity Pleading and which is explicitly referenced by an annotation, is quoted in the second reconstructed class discussion. The few instances in which quoted material is drawn from sources not explicitly cross-referenced are discussed below.
100. Davis, The Return of Martin Guerre, 108.
101. VNEq75, 33a.
102. AEq1, 32a.
103. WEq75, 33a.
104. File of “Letters Received regarding Dean Ames, 1925-1926,” Box 1, Philbrick Papers. See description above.
105. Eugene Wambaugh, “Professor Langdell—A View of His Career,” Harvard Law Review 20 (1906): 1-4; Joseph H. Beale, Jr., “Professor Langdell—His Later Teaching Days,” Harvard Law Review 20 (1906): 9-11; William Schofield, “Christopher Columbus Langdell,” The American Law Register n.s. 46 (1907): 273-96; Ames, “Christopher Columbus Langdell,” 467-82; Warren, History of the Harvard Law School, 2: 354-460; Batchelder, “C. C. Langdell, Iconoclast,” 303-23; Franklin G. Fessenden, “The Rebirth of the Harvard Law School,” Harvard Law Review 33 (1920): 493-517.
106. LaPiana, Logic and Experience.
107. Kimball, The “True Professional Ideal” in America.
108. Quinquennial Catalogue of the Law School of Harvard University, 1817-1934, ed. Guy H. Holliday (Cambridge: Harvard Law School, 1934).
109. For example, in ACon71 Ames notes, “Kit changes opinion” (19a) and “Later. L. thinks that … ” (153a).
110. Batchelder, “C. C. Langdell, Iconoclast,” 316; Warren, History of the Harvard Law School, 2: 373.
111. Schofield, “Christopher Columbus Langdell,” 275.
112. Henry C. Black, A Dictionary of Law (1891; New York: Lawbook Exchange, 1991).
113. Schama, Dead Certainties, 142.
114. LaPiana, Logic and Experience, 14
115. Batchelder, “C. C. Langdell, Iconoclast,” 316; Warren, History of the Harvard Law School, 2: 373.
116. According to my interviews conducted with two individuals who served as assistant deans of Harvard Business School in the 1920s: John C. Baker (October 19-20, 1995, Essex Falls, New Jersey); Deane W. Malott (December 12, 1995; Ithaca, New York).
117. Beale, “Professor Langdell—His Later Teaching Days,” 10; Ames, “Christopher Columbus Langdell,” 480-81.
118. Since some of Ames’s casebooks reflect annotations both as a student and as a professor, his annotations are found under either category.
119. Some of these glosses appear to be in a different hand from Parker’s.
120. In a bill for an account, the plaintiff alleges that the defendant, often a trustee or guardian, owes him money and asks the court of equity to order the defendant to render a documented accounting of the relevant financial transactions, so as to determine how much is owed. See Langdell, A Summary of Equity Pleading (Cambridge, MA: Charles W. Sever, 1877), 35-36. In Phillips v. Phillips (1852), discussed below, the court denies the bill on the grounds that the plaintiff is entitled to the accounting only if he and the defendant have mutual access to the transactions. This narrow ruling means that the plaintiff must seek an account through an action in courts of common law, the other main branch of the English legal system.
121. “Suing on an account” or “action on an account” was a common law suit analogous to a “bill for an account” in courts of equity. The latter had long displaced the former in English courts by the time of Phillips v. Phillips (1852). J. H. Baker, An Introduction to English Legal History (London: Butterworths, 1979), 300-305.
122. Beale, “Professor Langdell—His Later Teaching Days,” 10.
123. Note the ambiguity of Beale’s term “it,” which could refer either to the incident or to Langdell’s amusement when he subsequently recalled the incident.
124. The American colonies adopted the English legal system incompletely, often omitting the English court of equity, or Chancery, as did Massachusetts. In order to make up for such lacunae in the adopted system, various strategies had to be employed, and the term “account annexed” evidently refers to such a strategy. But the term is perplexing, and I have not found anyone who understands the term or the laughable nonsense. Perhaps the student is confusing “actual annexation,” the common law action “by which a chattel can be joined or united to the freehold.” Black, A Dictionary of Law (1891), s.v. “annexation.”
125. This sentence and the one above are written underneath each other in two different pens in PEq79. The tiny handwriting is difficult to read, and I am grateful to an anonymous reviewer for suggesting the reading “common counts” referring to “the pleadings applicable to contract disputes.”
126. Beale recalls, “once in a great while, something would amuse [Langdell], and then he would throw back his great head with a laugh that seemed to have the full strength of his mind in it.” Beale, “Professor Langdell—His Later Teaching Days,” 9-10.
127. John Mitford, (the Late Lord Redesdale), A Treatise on the Pleadings in Suits in the Court of Chancery, 5th ed. with notes by Josiah W. Smith (London: Stevens & Norton, 1847).
128. See LEq75, 77a.
129. In the following reconstruction, additional quoted glosses from the students’ casebooks are attributed to Charles Almy, since he is known to have been present, although his casebook is not extant.
130. Langdell, A Summary (Cambridge, MA: Charles W. Sever, 1877), 130p.
131. VNEq75, 33a. There are very few dates in the annotated casebooks, and it is no less remarkable that Van Nest dated the event than that these casebooks coincide in recording it.
132. Before the plaintiff, Chadwick, can pursue his action (suit) of ejectment in a court of common law against the defendant, Broadwood, who resides on the estate, Chadwick must go to courts of equity and win a bill for discovery to see whether Broadwood has a lease and what it says.
133. “Students soon learned that any position they might advance was pretty soon to be followed by the question ‘Could you suggest a reason?’ This came with such frequent iteration that it was something of a by-word. To this day the question ‘Could you suggest a reason,’ will probably produce a smile among old pupils of Professor Langdell.” Schofield, “Christopher Columbus Langdell,” 275.
134. The Master of Rolls was an important member of the staff of courts of equity, who kept the records and often appointed the lesser clerks. The “clerk in court” here refers to a staff member of the court of common law.
135. A negative plea actually denies a “material allegation” in the plaintiff’s bill. An affirmative plea does not deny an allegation (thereby implicitly conceding the truth of the bill), but avoids the bill by asserting, for example, that the remedy is barred for some reason, such as because it would violate the Statute of Limitations. Langdell, A Summary of Equity Pleading [1877], 61-65.
136. A “fine” in conveyancing was the “amicable” resolution of a suit “by which the lands in question become, or are acknowledged to be, the right of one of the parties.” Black, A Dictionary of Law (1891), s.v. “fine.” The plea of fine here seems to be the defendant’s claim that he owns the land by virtue of such a fine in the past. Fines were abolished in England by the time of this suit.
137. The effect of a plea either of the Statute of Limitations or of adverse possession is to say that the defendant has resided on the estate so long that the plaintiff, Chadwick, has forfeited any claim he may have had to the real estate and that, therefore, Broadwood does not need to provide discovery of the leases in the court of equity, as Chadwick’s bill requests.
138. For example, a gloss refers (101a) to Cases on Sales (1872).
139. See, for example, the obituary of Ames in the Boston Herald (9 January 1910).
140. Ames, “Christopher Columbus Langdell,” 478.
141. The annotations from the 1890s pose the puzzling question as to why Ames would add lengthy annotations to a twenty-five-year-old casebook that had been superseded by a second edition in 1879 for a course that he never taught again after 1877. An equally puzzling question is why, having continued to gloss ACon71 after the 1879 edition appeared, Ames, as late as the 1890s, laboriously copied or paraphrased the glosses of the former into his copy of the latter, ACon79. These puzzles may be explained by the fact that Ames wrote several articles on the history of contract law in the 1890s and must have consulted his annotated copies of Langdell’s casebooks in doing so. See “Parol Contracts Prior to Assumpsit,” Harvard Law Review 8 (1894): 252, reprinted in Select Essays in Anglo-American Legal History by Various Authors, Compiled and Edited by a Committee of the Association of American Law Schools (Boston: Little, Brown, 1909) 2: 304-19. See also “Two Theories of Consideration: Unilateral Contracts,” Harvard Law Review 12 (1899): 515; “Bilateral Contracts,” Harvard Law Review 13 (1899): 29; “Mutuality in Specific Performance,” Columbia Law Review 3 (1903): 1; “Specific Performance for and Against Strangers to the Contract,” Harvard Law Review 17 (1904): 174; all reprinted in Lectures on Legal History and Miscellaneous Legal Essays. In particular, “Bilateral Contracts” (1899) is cited by Ames in ACon79, 191a, 193a, 282a, 398a, 399a.
142. I am grateful to Lewis Sargentich of HLS for a discussion that helped me to understand and articulate the importance of this narrative structure.
143. Langdell occasionally employed the term “Spiritual court” interchangeably with “ecclesiastical court,” which he considered to be the source of the procedure for courts of equity in England. Langdell, A Summary of Equity Pleading [1877], xiii.
144. The reference here is to Theophilus Parsons, The Law of Contract, 2d ed., 2 vols. (Boston, 1855), for which Langdell served as the primary research assistant during and following his own studies at Harvard Law School.
145. On Langdell’s view of the relationships among liability of the parties, knowledge of the liability, and sufficiency of consideration, the reviewer of this casebook for the American Law Review seems justified in observing: “the cases on Forbearance, in Section 4 of the chapter on Consideration, are collected with an over-scrupulous minuteness. It seems as if the desire to give the whole history of the doctrine has led to putting in some contradictory and unreasoned determinations which could have been spared.” [Review of] A Selection of Cases on the Law of Contracts … by C. C. Langdell … 1870. (Part I), American Law Review 5 (1871): 539-40.
146. Hall, Letter to Francis S. Philbrick, 8 December 1925.
147. “Manuscript Book of Lecture Notes taken by an unidentified student in Suretyship class taught by C. C. Langdell in 1892-3,” 236.
148. Whittier, Letter to Francis S. Philbrick, 10 December 1925.
149. Hand, Letter to Francis S. Philbrick, 17 February 1926.
150. These words of Grant Gilmore are quoted affirmatively in Hoeflich, “Law & Geometry,” 121, n. 100.
151. John Stuart Mill, “Dr. Whewell’s Objections to the Four Methods,” in A System of Logic. Ratiocinative and Inductive, 8th ed. (New York: Harper & Brothers, 1874), 308.
152. Unpublished manuscript quoted in Wiener, Evolution and the Founders of Pragmatism, 76.
153. C. C. Langdell, “[Annual Report of the Dean of] The Law School,” in Annual Reports of the President and Treasurer of Harvard College, 1893-94, 121.
154. A Summary of Equity Pleading [1883], iv.
155. The absolute figures for these percentages are drawn from Langdell, “[Annual Report of the Dean of] The Law School [1893-94],” 121.
156. Eliot, Annual Reports of the President and the Treasurer of Harvard College, 1893-94, 23.
157. Charles W. Eliot, “Langdell and the Law School,” Harvard Law Review 33 (1920): 525.
158. Upon resigning as dean, Langdell lost his secretary, and an item for “Reader to the Dane Professor” appeared in the Law School budget beginning in 1895-96. “Treasurer’s Statement, 1896,” in Annual Reports of the President and Treasurer of Harvard College, 1895-96 (Cambridge: Harvard University, 1897), 63.
159. Schofield, “Christopher Columbus Langdell,” 277.
160. Beale, “Professor Langdell—His Later Teaching Days,” 9-10.
161. Ames, “Christopher Columbus Langdell,” 480.
162. Ibid., 479, 481.
163. Batchelder also mentions Langdell’s “bad eyesight” without relating it to his negative judgment about Langdell’s teaching (308). Ironically, Batchelder later observes metaphorically that, in developing “the case-system of teaching law” “Langdell … was experimenting in darkness absolute save for his own mental illumination.” “C. C. Langdell, the Iconoclast,” 315.
164. Lee, Letter to Francis S. Philbrick, 18 February 1926.
165. “Extracts from Letters by Onetime students under Langdell and Ames, Relative to the Attitude of Those Teachers toward the Law,” mimeographed pamphlet in the file “Letters Received regarding Dean Ames, 1925-1926,” Box 1, Philbrick Papers, Harvard University Archives, Letter X.
166. Whittier, Letter to Francis S. Philbrick, 10 December 1925.
167. Fessenden, “The Rebirth of the Harvard Law School,” 514.
168. Mark Hollins, Understanding Blindess: An Integrative Approach (Hillsdale, NJ: Lawrence Erlbaum, 1989), 107.
169. Donald D. Kirtley, The Psychology of Blindness (Chicago: Nelson-Hall, 1975), 144, 154. See, too, Berthold Lowenfeld, “Mental Hygiene of Blindness,” in Psychological Diagnosis and Counseling of the Adult Blind, ed. Wilma Donahue and Donald Dabelstein (New York: American Foundation for the Blind, 1950), 42-45.
170. Gilmore, The Death of Contract, 13.
171. Hoeflich, “Law & Geometry: Legal Science from Leibniz to Langdell,” 121, n. 100.
172. Jerome Frank, “A Plea for Lawyer Schools,” Yale Law Journal 56 (1947): 1303.
173. Quotation is from the observation: “Jerome Frank came within an ace of calling Langdell an emotional cripple who retreated into the library because he could not cope with the real world.” P. Stolz, “Clinical Experience in American Legal Education: Why Has It Failed?” in Clinical Education and the Law School of the Future, Resource Papers of the Conference [on law students in court] held … at the University of Chicago, ed. Edmund W. Kitch (Chicago: University of Chicago Law School, 1969), 72. See Frank, “Why Not a Clinical Lawyer-School,” 906-17; Anthony Chase, “The Birth of the Modern Law School,” American Journal of Legal History 23 (1979): 331, n. ll.
174. This bibliography does not include the annual reports written by Langdell as Dean of HLS, which are available in the published annual reports of the President of Harvard University. Nor does it address The Christopher Columbus Langdell Papers, twelve boxes (Modern Manuscript Collection, Harvard Law School Library). The entry for this item in the “Index of Modern Manuscript Collection” of the Special Collections of HLS observes that the Langdell papers “consist of [ten] manuscript boxes containing various groups of handwritten drafts. These groups are in disarray, and as there are no chapter or book-title headings, nor consecutive numbering of pages, it is impossible to restore the original order of this material. Moreover, the manuscripts are written in a hand so difficult as to be almost illegible to the average reader.” The papers that I examined cursorily in a few of these boxes appear to treat equity jurisdiction and may be drafts or notes for the articles on this topic that Langdell wrote in the 1880s and 1890s. The papers in Boxes 11 and 12 contain legible correspondence relating to a particular litigation and private property dispute.
175. The catalogue of the law school was included in the university catalogue: A Catalogue of the Officers and Students of Harvard University for the Academic Year 1869-70 (Cambridge: Sever, Francis, 1869-).
176. “Announcements, Tabular Views, Examination Papers of Harvard Law School, 1860-81,” and “Announcements, Tabular Views, Examination Papers of Harvard Law School, 1882-1890,” Bound Manuscript Collection, Harvard Law School Library.
177. The Dean’s annual report was included in Annual Report of the President of Harvard College, 1869-70 (Cambridge: University Press, 1871). Title varies in subsequent years.
178. The required courses established for the first year at HLS in 1877-78 persevered through the next century and would still be familiar, though the content had changed, as the required subjects for first-year students in the 1990s: Contracts, Torts, (Real) Property, Criminal Law and Procedure, and Civil Procedure. C. C. Langdell, “[Annual Report of the Dean of the Law School],” Annual Reports of the President and the Treasurer of Harvard College, 1877-78 (Cambridge: Harvard University, 1879), 85.
179. Although the law school course schedules indicate that this book was used in the late 1870s, the earliest imprint appears to be in 1881.
180. Charles W. Eliot, “[Address of Dean C. C. Langdell],” Report of the Ninth Annual Meeting [of the Harvard Law School Association] … in especial Honor of Christopher Columbus Langdell (Boston: Harvard Law School Association, 1895), 72.
181. James Barr Ames, “[Annual Report of the Dean of] The Law School,” Annual Reports of the President and the Treasurer of Harvard College, 1899-1900 (Cambridge: Harvard University, 1901), 172.
By: BRUCE A. KIMBALL