"Langdell, We Hardly Knew Ye"

HOWARD SCHWEBER

When historians focus on an influential figure, they often do one of two things: either create a biographical portrait of the person, or explain the contribution that the person has made to the development of ideas or institutions. In the case of Langdell, most writers have chosen the latter course, at least partly out of a conviction that the man himself was simply not very interesting.	1
Bruce Kimball wants to change that. 1 By introducing us to Langdell the man, as he appeared to his students, Kimball hopes to convince us of hitherto unrealized complexities in Langdell's life and teaching. This is not an argument about either Langdell's legal philosophy or his influence, but about biography. Kimball takes issue with the ascription to Langdell of "dogmatism, intellectual rigidity, and neglect of others' opinions and views" (58).	2
Kimball's is a difficult task, primarily because of the paucity of the written record. Langdell left behind no extensive body of correspondence, no personal journals, nor even very much in the way of writings about his work. Kimball, however, has done a remarkable job of finding previously unknown source materials and assembling, sorting, and attributing them. The results will be of lasting value to all scholars who have an interest in Langdell and the early days of Harvard Law School. The reconstruction of back-and-forth exchanges of comments between Langdell and James Barr Ames, the recovery and attribution of marginalia, and the reconstruction of Langdell's teaching "voice" all reflect a considerable amount of time spent in hard and ultimately rewarding effort.	3
Kimball's reconstructions of class discussions ring true. They reveal a much more spontaneous teacher than the autocratic didact of popular historical imagination, and a teacher of greater wit than has been credited to him. Indeed, one suspects that, if anything, Kimball may underestimate the extent to which Langdell spoke ironically, for example when he described his own views as "heretical." What Langdell was referring to as "heresy" was his idea of legal science, the claim that the correct rule of law was to be drawn inductively from observation (albeit within clearly defined and increasingly restrictive limits). Common law conservatism, however, was "orthodox" only in the sense of antiquity; certainly it was very far from hegemonic. By 1870 the rejection of common law conservatism and the idea of legal science were widespread and influential elements of American legal education in many university programs.	4
If Kimball's reconstructions persuade us that Langdell was not always so inflexible as he is sometimes portrayed to have been, they also do much to explain Holmes's famous characterization of Langdell as a "legal theologian." The comments of Langdell and his students are depressingly dry, focusing almost exclusively on technical points of doctrine and procedure. Like Langdell's legal science, his pedagogy was "open" only within the constraints of an exceedingly internalistic discourse. Two entire class sessions were spent characterizing two pleas in a case in equity, trying to determine whether they were pleaded in the negative or affirmative. Langdell initially concluded that each of two pleas in equity proferred by a defendant were "affirmative in form ... but ... negative in effect" (105) ... except for the second and third paragraphs of the second plea, which were affirmative in both form and effect. Finally Langdell is persuaded by Ames that both pleas are in fact negative, since it was not proper to divide the characterization of the second plea by paragraphs. Legal theology, indeed. Even the crucial question of whether the law may be "doubtful" turns out, on close examination, to be about standards for ruling on points of procedural law rather than the broad-ranging philosophical inquiry that Kimball seems to suggest, as evidenced by Langdell's reduction of the issue: "Whether law is doubtful or not is a question of fact" (123). In short, Langdell appears in this material as exactly the kind of legal thinker in his teaching that he was in his writing. It is no wonder that in his Early Period he was able to attract only a few students, nor that among them should be technical wizards such as Ames.	5
Kimball characterizes Langdell's questions as seeking "not to prompt a particular response, but to stimulate open inquiry" (73). But I must confess that I have difficulty seeing it. In a reconstructed dialogue on consideration (112-23), Langdell's questions to his students (paraphrased) were: "What specifically may be regarded as consideration?"; "And what kind of contract, specifically [was involved in a case]?"; "How does forbearance from suing fit Justice Holroyd's conception?"; "And what are the early authorities?"; "Remind us about Davis v. Reyner"; "And the ruling?"; "Is this ruling sound?" It is not obvious that these questions are stimulations to open inquiry rather than inquiries designed to ensure that students had done their assigned reading. Similarly, when Langdell asks "[u]pon which rule did the arguments and decisions proceed?," the question may be merely pedantic, or it may have been ironic, in which case there would be little to choose between it and Ames's more forthright "Absurd!," except to the effect that Langdell's was the drier wit.	6
Kimball, then, has gone a long way toward persuading us that in his early years at Harvard—and presumably earlier, during his practice in New York City—Langdell was a much warmer, wittier, and more accessible figure than he is often portrayed to be. But when he attempts to move from observations about Langdell's classroom style to conclusions about his philosophy, Kimball's interpretations of the materials he has discovered become less powerful. The conclusions, in fact, reveal that an important element is missing from the discussion. Kimball does not succeed in making any substantial connection between Langdell's teaching and his jurisprudential theory. This creates problems when Kimball attempts to reason back from Langdell's teaching style to his thinking about the law. Even allowing for poetical overstatement (such as the comparisons of Langdell to "the historical Socrates"), it is not clear that the evidence that Kimball adduces supports the portrait of Langdell as open-minded and philosophically inclined. To be sure, Kimball demonstrates that in the Early Period Langdell was willing to publicly change his mind. On the other hand, it is hardly a sign of humility and open-mindedness that Langdell was willing to dismiss a whole raft of cases as wrong if they did not accord with the scientific principle that he purported to find in the law.	7
Nor is it clear that Kimball's portrait compels us to alter our understanding of the role that Langdell played in the development of legal education. Chronology is significant here. Kimball shows that Langdell's writings appeared in three distinct phases, separated by periods of silence, and suggests that his pedagogy can be similarly periodized. Kimball attributes the negative stereotypes of Langdell to an undue focus on the last of these three periods and a failure to thoroughly examine the Early Period. Yet it is generally agreed that the most typical and the most influential of Langdell's works—the one Thomas Grey accurately calls "most Langdellian"—is the Summary of the Law of Contracts, which appeared in 1880, near the end of Kimball's Early Period. Conversely, in terms of pedagogical influence, it was not until considerably later that American law schools other than Harvard began to follow the Langdell model. So perhaps writers who are primarily concerned with Langdell's legacy are right to be looking at the Middle or even the Late period of his work.	8
After the Early Period, as Kimball concedes, Langdell did indeed become a teacher who "dogmatically transmitted a formalized orthodoxy to his students" (124). Kimball suggests that this was because Langdell believed that he had found all the right answers, because the press of administrative duties afforded him little leisure time, and because of his increasing blindness. These are reasonable conjectures. But the argument about Langdell's adoption of Mill's definition of induction is less convincing. It is a rare man indeed who reconstructs his governing idea of rationality in response to a new intellectual fashion. It is true that thirty years later Pierce would refer to the dominance of the Millsian model, but it verges on the whiggish to apply that model retrospectively to the work of a man whose formative education took place before the Civil War. (There is reason, indeed, to doubt that Langdell can be described as either a Whewellian or a Millsian thinker.)	9
These caveats point to the bounds of the project rather than criticize its execution. Kimball introduces us to Langdell the classroom teacher, where in the past we have seen only Langdell the curriculum designer, the legal philosopher, or the law school dean. Those other aspects of the man remain essentially undisturbed, I think, but the introduction of an additional dimension is a welcome corrective to the natural tendency to conflate the person with his official portrait. In the end, none of the points about the way Langdell delivered his lessons may be as important as the material that he chose to teach in them. Nevertheless, the sound spilling into the halls in the early 1870s, it appears, was laughter. Not bad, for a—excuse me, the—Contracts professor.	10
Howard Schweber is a doctoral candidate in the Department of Government at Cornell and an ex-lawyer. Notes       1. Page numbers in parentheses refer to Bruce A. Kimball, "Warn Students That I Entertain Heretical Opinions," Law and History Review 17 (1999): 57-140.

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