"Warn Students That I Entertain Heretical Opinions, Which They Are Not to Take as Law": The Inception of Case Method Teaching in the Classrooms of the Early C. C. Langdell, 1870-1883

BRUCE A. KIMBALL

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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	1
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	2
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	3
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	4
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.	5
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.	6
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	7
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.	8
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	9
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 which is summarized in Table 1.	10
Table 1. Early Collaboration between Langdell and Ames in Teaching
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.	11
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.	12
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	13
In sum, I am proposing the periodization of Langdell's academic work that appears in Table 2.	14
Table 2. Periodization of Langdell's Academic Work, as Reflected in his Academic Publications and Teaching
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	15
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.	16
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	17
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:	18
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.	19
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.	20
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:	21
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:	22
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	23
These second and third practices of raising questions and hypotheticals were acquired by his students, as is demonstrated by Parker's glosses in PEq79:	24
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).	25
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)	26
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:	27
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.	28
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	29
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.	30
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	31
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	32
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	33
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.	34
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	35
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.	36
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.	37
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	38
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:	39
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.	40
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	41
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.	42
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.	43
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	44
Figure 1.     Title Page from Langdell, A Selection of Cases on the Law of Contracts... (1870) [LCon70], annotated by Langdell in the early 1870s. Courtesy of Special Collections, Harvard Law School.   Figure 2.     LCon70, front page. Inscriptions read: "Do not trim." "Eugene Wambaugh 76 April 2." "This volume belonged to Professor Langdell. The manuscript notes are in his handwriting. E. W." Courtesy of Special Collections, Harvard Law School.   Figure 3.     LCon70, page one. Annotations read: "Manning v. Stuart, 4 Moot Court Cases, 13." "X see p. 812." "Effects of clause in conditions of sale that bids shall be irrevocable. Dart on Vendors (4th ed. 113) If the buyer may retract at any time before the hammer falls, so may the seller; & hence the seller is not bound by an announcement that the sale shall be 'without reserve'." Courtesy of Special Collections, Harvard Law School.   Figure 4.     LCon70, final page. Annotations read: "Leake uses the phrase executed consideration in a different sense from what it has been used in in [sic] this section. Leake on Contracts, 10, 313-315." "The promises implied by law from an executed consideration are not only the contracts implied by law; for the promise[?] by the debtor sued or in an indebitatus count [?] is created by implication of law as will appear in the 2d vol." Courtesy of Special Collections, Harvard Law School.
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	45
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.	46
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.	47
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.	48
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.	49
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:	50
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.	51
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	52
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:	53
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.	54
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.	55
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	56
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.	57
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	58
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.'"	59
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.	60
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)