Bruce A. Kimball

The Langdell Problem: Historicizing the Century of Historiography, 1906–2000s

Christopher Columbus Langdell (1826–1906) is arguably the most influential figure in the history of legal education in the United States, having 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. Langdell's innovations—including the admission requirement of a bachelor's degree, the graded and sequential curriculum, the hurdle of annual examinations for continuation and graduation, the independent career track for professional faculty, the transformation of the professional library from a textbook repository into a scholarly resource, and the inductive pedagogy of teaching from cases—became the characteristics gradually adopted by university law schools after 1890 and, eventually, schools of other professions. Langdell thus transformed legal education from an undemanding, gentlemanly acculturation into an academic meritocracy.

Due to this transformation, Langdell's work has been discussed by members of the legal profession and academe throughout the century since his death in 1906. In fact, this discussion has intensified during the past two decades to the point that Langdell studies have become "practically a cottage industry." At the beginning of the twenty-first century, interviews with deans of leading law schools conducted by the Modern Legal Pedagogy Project reveal that Langdell continues to be identified with either the greatest ills or the greatest strengths of law schools in the minds of eminent legal educators.¹ A century after his death, analysis of Langdell is entwined with debates over the dominant paradigm of legal education, and this is why understanding Langdell is so important and so contested even today.

Given this importance and the decades of discussion, it is surprising that most of the original sources written by or about Langdell have only begun to be examined by scholars. These sources, discussed in greater detail below, include records from his hometown and his education in school, college, and law school; letters and case reports concerning his fifteen years of legal practice on Wall Street; bound manuscripts and notes written by Langdell or his students for the classes he taught throughout his tenure as a HLS professor; and thousands of loose manuscript pages in Langdell's hand. Apart from these sources reposited in places where he lived or worked, additional original sources pertaining to Langdell are available in the papers of his students, colleagues, and contemporaries located in various archives.

These original sources are yielding a new and more complex interpretation of Langdell.² It is becoming apparent that, after a traumatic childhood on a hardscrabble farm in New Hampshire, Langdell faced and overcame great obstacles as a "pauper scholar," achieving both academic success and positions of leadership at Philips Exeter Academy (1845–48), Harvard College (1848–49), and Harvard Law School (1851–54). Between 1855 and 1870, he distinguished himself as a busy and effective member of the bar on Wall Street. Not only did Langdell successfully argue prominent cases with and against leading attorneys in the highest courts of New York state, he belonged to the vanguard of attorneys pioneering a new role in litigation: that of crafting the highly technical written brief that was beginning to displace oral argument in complicated cases arising in growing commercial centers, such as New York.

Upon returning to HLS as a professor and being named dean in 1870, Langdell introduced the inductive and Socratic case method of teaching and practiced it assiduously, while advancing meritocratic reforms in legal education over the opposition of many students, colleagues, and members of the bar. These energetic endeavors—intended, it seems, to prepare students for a new kind of legal practice requiring greater doctrinal sophistication and command of case law—subsided in the early 1880s. At that point, most of the reforms were being instituted, his eyesight began to fail, and he married for the first time. After the mid-1880s, Langdell increasingly devoted himself to teaching and studying equity, the subject that had dominated his interest and expertise from the mid-1850s.

Befitting the subject of equity, as well as his background as a prudent Yankee and an effective litigator and administrator, Langdell attended to the practical outcomes of legal disputes and jurisprudential questions at the same time that he was thoroughly committed to maintaining coherence in legal procedure and reasoning. This commitment apparently rested upon the justification—now emerging from manuscripts being studied for the first time—that such coherence served the end of justice. Thus, Langdell appears to say at points that judges' attempts to render "just" decisions by abrogating consistent rules produced greater injustice to those who expected that the existing rules would apply, including other parties to the case as well as potential litigants in similar disputes. Accordingly, he did sometimes criticize judges' decisions in particular cases as unjust.

Important aspects of this tentative interpretation contradict the view of Langdell that has developed over the past century. The latter presents a rather pathetic figure: a self-absorbed, reclusive, though successful, grind who failed miserably as a lawyer, ultimately fearing to leave his garret office and engage other attorneys in court. Rescued from the bar by the inexplicable intervention of Harvard president Charles W. Eliot, Langdell fled back to HLS, where he sought, almost vengefully, to remake the law school into a place that nurtured and elevated misfits like himself, who pursued logical analysis of obscure, antiquated problems and cases. "Langdellian" jurisprudence thus came to mean deductive, formalistic analysis aloof from practical outcomes or concerns of justice. Commensurately, Langdell the teacher could not have invented, practiced, or understood an inductive, Socratic pedagogy, according to the received view. By the same token, Langdell the dean was an ineffectual, intimidated administrator, merely the front man for President Eliot's designs. Nevertheless, Langdell somehow succeeded in working his will for twenty-five years at Harvard and, vicariously, for the next century at law schools throughout the nation.

Elaborated over time and qualified in various ways, the received view of Langdell still predominates, notwithstanding its own inconsistencies and the challenge presented by recent revisionist scholarship. Its predominance poses the historiographical problem addressed by this essay. This "Langdell problem" comprises two paradoxical questions.

First, how and why has the received view developed and persisted contemporaneously with the enormous influence of Langdell and his model of legal education? In other words, how has it been possible to portray Langdell as such a loser while his educational reforms were so successful? Second, how and why has the century of scholarship on Langdell overlooked the majority of original sources that would normally be considered in a scholarly analysis of a historical figure and, instead, consulted a small and selective base of evidence? Many of the most influential statements in Langdell historiography have come from scholars who have studied or taught at Harvard or Yale. Yet, it seems that none, until very recently, has ever surveyed the archives in the most obvious and readily accessible place—Harvard Law School—for original writings by Langdell. Over the past fifty years, this kind of survey has been undertaken about Joseph Story, O. W. Holmes, Jr., Louis Brandeis, Learned Hand, Felix Frankfurter, Roscoe Pound, to name a few. Why has the received view of Langdell, founded upon a little selective evidence, gained such monumental authority?

This essay addresses and explains the two-fold Langdell problem by demonstrating that the neglect of sources has been obscured through a process of sedimentation in the published scholarship. This sedimentation occurred, I argue, because the received view of Langdell served various purposes of legal scholars at different points during the past century.

This argument is made by analyzing influential or exemplary publications and identifying the sediments of Langdellian historiography, which fall into these broad periods or movements:

1906	Memorials
1906–1909	Biographical Research
1910s	Revisionism
1920s	Counter-revisionism and Response
1924–1970s	Age of Caricature
1980s–	Reassessment and Return to the Sources

This analysis includes an assessment of the validity of the various accounts in light of the available evidence and the circumstances of their writing. From this historicizing of the historiography is inferred the various purposes of legal scholars, explaining their reluctance at different points to question the received view and dig through the obscuring sediments to the original sources.

First, it will be helpful to know the nature and volume of Langdell's writings. Roughly half are unpublished and consist of about 5,000 loose sheets of drafts, letters, and unidentified manuscripts, and about 2,000 pages of lecture notes in loose sheets and bound manuscripts, and about ten personally annotated copies of casebooks and treatises. Prior to 1999, no published study appears to have cited more than a few dozen pages of this material. Part of the reason for this neglect is that, through the year 2000, Langdell's unpublished, loose papers were collected in "twelve manuscript boxes containing various groups of handwritten drafts," which "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." In 2003 these unpublished papers were reviewed carefully, in most cases identified and categorized, and reordered.³ This reordering incorporated from the Harvard University archives a separate collection of another five hundred of Landell's unpublished, loose papers, whose original, shelf-list card read: "Langdell's Papers, received from the Law School, 1941, and sampled by the Archives staff. Includes a few letters. Bad writing, and very hard to identify. About six times as much thrown out." In addition to letters, the latter collection included a checkbook ledger and, for example, the lectures given by Langdell in the spring of 1883 in the course that Oliver W. Holmes, Jr., was scheduled to teach until he resigned abruptly from Harvard Law School in December 1882. To scholars seeking to develop a full and faithful interpretation of Langdell, it is tragic that some 3,000 papers—possibly including letters, financial records, and lectures—were discarded in 1941. It is also telling that this literal trashing of Langdell occurred contemporaneously with the high tide of Holmes's "hagiography," as discussed below.

The other half of Langdell's writings are published and consist of six dictionary articles, four casebooks, three doctrinal summaries, nine independent articles in the Harvard Law Review, three brief essays about Harvard Law School, twenty-five annual reports, and four published briefs of cases. No scholar has cited more than about half of these publications.⁴ In sum, no scholar to date appears to have examined more than about one quarter of Langdell's writings, quite apart from the issue of consulting observations about Langdell appearing in writings by his classmates, colleagues, students, and contemporaries.

It is also helpful to observe at the outset that about two-thirds of Langdell's work as a lawyer, teacher, and scholar was devoted to procedure and equity. Another two-ninths addressed commercial law, including partnership, negotiable paper, bills of exchange, sales, and suretyship. The remaining one-ninth of Langdell's work was devoted to the common law field of contract. These proportions are fairly consistent across Langdell's reported litigations, his publications, and his teaching, as reported in HLS catalogs and demonstrated in Table 1.

Table 1. Proportion of Langdell's teachingand lecturing in domains of law, 1870– 1900

Domain of law	Number of semester courses taught, 1870–1883	Number of semester courses taught, 1883–1900	Total number of semester courses taught

Contracts	11	0	11
Civil procedure, equity pleading, procedure, or jurisdiction	26	34	60
Commercial law, including negotiable paper, partnership, bills of exchange, sales, suretyship	8	12	20

Source: Harvard Law School annual catalogs foracademic years from1869–70 to 1899–1900.

This background will support the demonstration below that the large majority of Langdell's most salient writings have not yet been examined by scholars, and that, as a result, what scholars have lately come to call "most Langdellian" is, in fact, least Langdellian.

I. Memorials, 1906

When C. C. Langdell "died suddenly at his home ... from heart disease" on July 6, 1906, the public press proclaimed him to be "the greatest teacher of law that this country has ever produced" and "one of the most widely known instructors and authors of law textbooks in the English-speaking world." His accomplishments and reputation were regarded as so firmly established that "[t]here is no good reason to presume that this signal triumph of [Langdell's] genius will not endure. There is little, if any, indication of a reactionary trend."⁵

Within a week of Langdell's death, the Nation published a memorial by Eugene Wambaugh, who had known Langdell as a teacher and colleague for thirty years. Wambaugh's triumphal essay became the most prominent, early assessment of Langdell, asserting that he had invented and championed case method teaching for two decades—even though this innovation was "bitterly attacked" both inside and outside HLS. In addition, Langdell introduced widely adopted innovations in academic administration, curricular organization, library development, legal scholarship, and the profession of law teaching, according to Wambaugh. Consequently, "[f]or a generation no professor's name has been more widely known" or even earned a place "beside Professor Langdell's at the head of the list of American scholars."⁶ Wambaugh's article was reprinted a few months later in England⁷ and in the Harvard Law Review, which inaugurated the professional and scholarly literature on Langdell by publishing five, brief essays that became the most consulted and quoted memorials about Langdell.

Along with Wambaugh, a second contributor was Austen G. Fox, a prominent member of the New York bar and one of the students personally interviewed, admitted, and registered by Langdell in October 1870, during his first semester as dean. While attending Langdell's first class taught by case method in fall 1870, Fox joined the small student law club that endorsed Langdell's academic reforms.⁸ Fox also became one of Langdell's seven disciples, known as "Kit's freshmen," who attracted "much good-natured ridicule" from other students.⁹ A third author and another of "Kit's freshmen" in the early 1870s and member of that student club endorsing Langdell's reforms was James Barr Ames, who succeeded Langdell as dean of HLS.¹⁰

A fourth memorial in the Harvard Law Review was contributed by Jeremiah Smith, an HLS professor who wrote several obituaries and was the only individual for the next century, apart from Ames, who examined the records of Langdell's secondary and college education from the 1840s.¹¹ The final memorialist was Joseph H. Beale, Jr., who had graduated from HLS in 1887 and joined the HLS faculty as an assistant professor in 1892. Given his later role as the leading "proselytizer for the Langdellian movement" both jurisprudentially and educationally,¹² it is surprising that Beale's praise of Langdell's scholarship, teaching, and intellect was distinctly qualified, although Beale accorded to Langdell more credit for the administrative reforms at HLS than did other observers, who acknowledged the role of President Eliot. Thus, Beale's assessment was curiously uneven and converse to that of other commentators.¹³ The other memorialists, drawing primarily upon their personal observations of Langdell, were thoroughly laudatory.

II. Biographical Research, 1906–1909

Even as the memorials appeared, certain authors began following the lead of Jeremiah Smith and undertaking research in order to produce a biography of Langdell. However, their research was pursued divergently and incompletely, yielding different data and emphases. The biographical essay quoted most often over the next century was written in the three weeks following Langdell's death by Samuel F. Batchelder. Originally composed on stationary at his country club and published in The Green Bag, A Useless but Entertaining Magazine for Lawyers, Batchelder's sixteen-page account was transmitted to many other sources via Charles Warren's History of the Harvard Law School and The Centennial History of the Harvard Law School, 1817–1917. Meanwhile, Batchelder's essay was consulted directly for many scholarly works, including The History of Legal Education in the United States (1999).¹⁴

Langdell had known Batchelder personally as a student at HLS between 1895 and 1898 and as the clerk of Christ Church, Cambridge, where Langdell and his wife were longstanding members. In addition, Batchelder was the grandson of HLS professor Emory Washburn, who served on the HLS faculty from 1855 until 1876 and opposed most of Langdell's reforms in the early 1870s. Given these personal ties and the fact that the semi-retired Langdell was nearly blind and no longer a source of inspiration for the students when Batchelder attended HLS, the images of Langdell conveyed to Batchelder were mixed.¹⁵

In addition to his personal knowledge, Batchelder corresponded with a number of individuals about the various periods of Langdell's life.¹⁶ While this approach was industrious, given Batchelder's time constraint of three weeks, there were drawbacks to reliance upon anecdotal sources unverified by documentary research. Inaccuracies were introduced; some of the anecdotal material was second or third hand; and the testimony was influenced by the personal animus of some individuals, such as Joseph H. Choate and Emory Washburn, who seem to have begrudged Langdell's influence and reputation.¹⁷

In fact, Choate's and Washburn's depreciating accounts of Langdell's experience at the bar in New York City from 1855 to 1870 were embellished by Batchelder into a portrait of a naïf, unready for the courtroom and unduly trusting in knowledge from books. Batchelder called Langdell a "sensitive spectacled student [who] found at the very outset of court work that the acutest legal mind, unsupported by practical legal experience, is no match for the tricks of the legal sharper." Contrary to the evidence now available, Batchelder extended this depreciating view by speculating that, early in Langdell's legal practice, the loss of several cases in succession was "too much for his pride. He flatly and finally withdrew from the courthouse and gave himself up to office work and research."¹⁸

Overall, Batchelder's narrative portrayed Langdell rising from obscurity, struggling against adversity, and successfully reforming HLS. To accentuate the triumph, Batchelder lathered up Langdell's personal limitations, inexperience, and obstacles. But these points, ironically, would later be invoked to undermine the most deeply evidenced, detailed, and creditable part of Batchelder's account, describing the Socratic and inductive nature of Langdell's case method and the innovative hypothetical character of his written exams.¹⁹ Langdell's detractors would later reason that someone so flawed could not be responsible for these incisive reforms.

Batchelder's description of Langdell's new pedagogy and examinations is confirmed by the testimony of several witnesses, who also contributed to the profusion of biographical research between 1906 and 1909. One such author was William Schofield who had graduated from HLS in 1883, taught at HLS from 1886 to 1890, and been appointed to the Massachusetts Supreme Judicial Court in 1903. Schofield's twenty-four-page article was called "the best and most elaborate account" of Langdell's teaching by Charles Warren.²⁰ Aside from its first-person testimony, the merit of Schofield's article lay in its balanced and forthright tone. Even when describing the Socratic and inductive nature of Langdell's case method that he had witnessed, Schofield seemed to be striving not to lionize the dean, but to present a faithful and nuanced recollection, while noting Langdell's eventual abandonment of case method due to the deterioration of his eyesight, beginning in about 1880.²¹

An additional merit of Schofield's essay was its attention to Langdell's publications and brief consideration of how these related to his teaching and his intellectual viewpoint.²² Several of the publications would not be examined again by scholars writing on Langdell for the next eighty years. In fact, the very existence of Langdell's first publications—six articles in John Bouvier's respected Law Dictionary—was forgotten after Schofield.²³

Even as Schofield was preparing his article for publication in May 1907, James Barr Ames was expanding his earlier statements into a twenty-five-page essay that served as "the most complete biographical source" on Langdell for the next century.²⁴ Ames became Langdell's leading student, championed his academic reforms, and succeeded Langdell as dean in 1895. Writing for the multivolume collection Great American Lawyers, Ames made the greatest efforts at research to that point, visiting Langdell's hometown in New Hampshire, corresponding with his sister in Kansas, and consulting the Harvard College archives.²⁵ In addition, Ames reviewed the largest, single collection of Langdell's letters surviving to the present day, a collection that no scholar cited for the next ninety years. From these letters, Ames identified the only two cases on which Langdell was long known to have worked.²⁶ Based on this research, Ames devoted the first half of his essay to Langdell's life up to his appointment as dean in 1870 at the age of forty-four.

In the second half of the essay, Ames discusses Langdell's career after 1870, including his writings, teaching, administrative work, and, finally, Langdell's personality and private life.²⁷ The data are drawn primarily from Ames's personal observations and experience, which were highly favorable; but this favorable judgment may, ironically, have led Ames to detract from Langdell's contributions. Whereas Batchelder's intent to extol Langdell prompted him to emphasize the early barriers that Langdell faced and the contrasting magnitude of his later work, Ames, the Boston Brahmin and Victorian, subtly minimizes Langdell's difficulties and limitations. He shies away from relating the mean details of Langdell's early life, omitting description of the poor family farm and softening or avoiding references to the troubled father. This Brahmin attitude is shown clearly when Ames, rebutting his own presumption that Christopher's youthful work as a mill-hand was demeaning, hastens to note that "the quality of the mill-hand" was much better "sixty years" ago.²⁸ Similarly, Ames avoids discussing Langdell's developing blindness, even though this is crucial for understanding the contrasting assessments of Langdell's teaching made early and late in his career. In this way, Ames minimized what others called Langdell's "defect."²⁹

Contemporaneous with, but apparently independent of, Ames's essay was the final source in the early period of biographical research on Langdell: Charles Warren's History of the Harvard Law School, which contributed the most careful review of the institutional records of Harvard University and Harvard Law School. This review included nearly sixty pages devoted to HLS in the early 1850s, when Langdell attended, and nearly a hundred pages concerning the institutional and pedagogical changes wrought at HLS during Langdell's deanship, 1870–1895.³⁰

Warren's narrative includes copious quotations from the official records and, less often, from published commentary by participants in the events. The most significant personal testimony contributed by Warren on these topics was a collection of letters written during 1907 and 1908 by alumni, many of whom knew Langdell during his three years of study at HLS from 1851 to 1854. A few of these letters lamented the tendency "to glorify the condition of the Law School during the Langdell régime and to depreciate correspondingly its condition under the previous régime." Warren was therefore prompted to inaugurate a revisionist interpretation of Langdell, announced by an apt phrase from the poet Horace: "the graduates since 1870 [ought] to remember that there were indeed 'kings before Agamemnon.'"³¹

In 1908 Warren thus initiated a reaction against the celebratory literature of Langdell. He discounted "[t]he prevailing ideas that the Law Library was brought into existence later under the Langdell regime, and that it was not of much account prior to that time." Regarding Langdell's innovation of case method teaching, Warren maintained that the professors' pedagogy during the 1850s incorporated "the germ of the Case System idea, introduced twenty years later." In a chapter entitled "Eliot and Langdell," Warren countered the tendency to credit solely Langdell for the institutional transformation of HLS by discussing "the most important innovations introduced by President Eliot and Dean Langdell."³² Nevertheless, over the last forty pages of Warren's account, addressing Langdell's teaching and his administration from 1882 until 1895, Eliot recedes into the background and Warren celebrates "Langdell's scheme of legal education."³³

In the brief period of biographical research, Batchelder, Schofield, Ames, and Warren attempted to gather evidence about Langdell. But they did so independently and thus drew upon different sources, yielding different data and emphases about Langdell. In various ways, they also began to engage the interpretation of Langdell's "defects" or shortcomings that the memorialists had disregarded.

III. Revisionism, 1910s

Following the period of biographical research, two institutional monographs were written over the next decade that profoundly shaped future consideration of Langdell. Without providing new research, they extended and codified the revisionist interpretation initiated by Charles Warren.

In 1913 the Carnegie Foundation for the Advancement of Teaching commissioned Josef Redlich, a German-trained law professor at the University of Vienna, to study and "pass judgment upon the nature and success of the so-called case method." Having toured the United States in 1910, Redlich returned for several weeks in late fall of 1913 to conduct this Carnegie study by visiting ten of the some 125 law schools at the time, including Harvard, Columbia, Michigan, Chicago, Northwestern, and New York University.³⁴ Anticipating these visits, the deans of several of the schools wrote to HLS Dean Ezra R. Thayer expressing concern "that an Austrian professor will be deeply wedded to the German system of instruction by lectures and that he will approach the case system, which we use, with very little sympathy...." Thayer agreed, but responded that "the Carnegie people are bent upon having this done, and I do not see anything for the rest of us to do but submit and look pleasant."³⁵ Consequently, each school agreed to be visited by Redlich, whose final report was oddly inconsistent in regard to Langdell.

At the outset, Redlich's extensive discussion follows the memorialists and the biographers in asserting the originality and Socratic character of Langdell's case method.³⁶ Then, in a section subtitled "Shift of Emphasis under Langdell's Successors: Training the Legal Mind," Redlich announces the unprecedented view that Langdell's successors had shifted "to a completely changed conception of the purpose" of case method teaching.³⁷ Redlich associates the shift most closely with William A. Keener, who attended HLS from 1874 to 1877, taught there beginning in 1883, and moved in 1890 to Columbia University Law School, which he reformed along the lines of HLS during service as dean from 1891 to 1902. Redlich maintains that Langdell was concerned simply with transmitting doctrine, whereas Keener developed case method into "the intellectual training necessary for ... a specifically legal manner of thinking." This unprecedented attribution to Keener of "training in characteristically legal thinking" is not only surprising, but perplexing in view of Redlich's immediately subsequent association of this "completely changed conception of the purpose of legal education" with James Barr Ames.³⁸

The shift posited by Redlich provided the cue for the second, revisionist monograph of the 1910s: The Centennial History of the Harvard Law School, 1817–1917. In 1918 this tendentious volume—the most influential source in determining future interpretations of Langdell—was issued in 4,000 copies that HLS officials expected to "last us for many years." But the print-run was exhausted by 1925 because copies were sent to every member of the HLS alumni association and to most university law libraries, and a new printing had to be arranged.³⁹ By that point, those responsible for preparing the Centennial History regarded it as codifying the history of HLS prior to 1917 and saw little need for consulting any other work, such as "Warren's production."⁴⁰ This eclipse of Charles Warren's longer, deeper, and more careful history then passed into the literature, wherein scholarly writings for the next eighty years have often relied, directly or indirectly, upon the characteristic interpretation of the more easily accessible Centennial History and neglected Warren's history.⁴¹ Indeed, the Centennial History is today commonly called "the official history of the Harvard Law School."⁴²

On its face, the Centennial History appears uncontroversial and reliable, given its bland institutional origin, the anonymity of authorship, and the numerous appendices filled with facts and data. But several factors suggest caution. The volume was produced as a promotional monograph making the case to establish an endowment for the school.⁴³ Apart from occasional, general acknowledgments of sources, the work is undocumented, although long passages of text are copied or closely paraphrased from other sources. In addition, the volume is internally inconsistent, for the interpretation of Langdell in the biographical appendix is at odds with that in the narrative history. These cautionary points, combined with its influence, make the Centennial History worthy of some analysis.

The HLS archives reveal that the four-hundred-page volume was a composite work, coordinated by Zechariah Chafee, Jr., later famous for his writing on freedom of speech. Chafee was hired in 1916 as an assistant professor and saddled with the task of administering the many, irksome details of producing the volume.⁴⁴ The guiding architect for the monograph was Joseph H. Beale, who assigned to various professors the tasks of writing the appended biographies of deceased faculty members. Above all, Beale wrote anonymously the three opening chapters, which set forth a 120-page, narrative history of the institution, the instruction, and the library.⁴⁵ This material codified the most easily accessible and seemingly authoritative version of HLS history, while it also presented a persistent and unprecedented effort to minimize the contributions of Langdell and to elevate the accomplishments of Ames.

Langdell's vision of educational reform was portrayed as stillborn, needing "an Ames to catch up his idea and touch it with life." In particular, "[t]hat development of the Langdell system which was finally adopted as the best method was the invention of Ames ... Ames as a teacher had the good qualities which Langdell lacked. His mind was broadly trained, full, and ready, and moved rapidly enough to keep the interest of the class alive.... Like Socrates himself, he desired to open the eyes of his students and let them discover the truth for themselves." In these words, Beale embraced and altered the revisionism of Redlich. True, Langdell had never really practiced or fathomed case method, held Beale; but it was not Keener who led the way or even kept pace. Ames pioneered the transformation, and "Keener followed it."⁴⁶

Ames's eclipse of Langdell was not limited to case method. Beale credited Ames, as much as Langdell, with establishing the admission standard of a college degree and thereby elevating legal education to the graduate level. Even building up the law library—previously considered Langdell's favorite project—was attributed primarily to Ames. Founding the Harvard Law Review was likewise credited particularly to Ames, although the Review emerged from the students' Langdell Society and although the opening issues of the Review do not mention Ames and speak of Langdell in the most glowing terms.⁴⁷

The revisionism of the Centennial History and the Redlich Report are unmistakable. Keener never attributed to himself, or even identified, a shift away from Langdell's case method "to a completely changed conception of the purpose of legal education." In fact, Keener in 1895 warned against "the present danger ... of a counterfeit method" leading some "to misunderstand the true nature of the Langdell theory of teaching."⁴⁸ If Keener introduced any change in case method, it was in deemphasizing the inductive approach and imparting more doctrinal material. Thus, he explicitly balanced the purpose of developing "the student's reasoning power ... of legal analysis and synthesis" with "the other object of legal education namely, knowledge of what the law actually is." As a result, Keener was criticized by the Harvard Law Review for incorporating too much textbook material in his casebooks and moving away from "the case system pure and simple."⁴⁹

None of the earlier observers mentioned the shift described by Redlich and Beale or attributed a catechetical or rote character to Langdell's case method teaching. In 1886 Oliver Wendell Holmes, Jr., recalled that in 1882 he had successfully taught with one of Ames's casebooks and "Mr. Langdell's method."⁵⁰ Here was the perfect opportunity to credit to Ames a shift or refinement in "Langdell's method" by the mid-1880s, but Holmes did not. Nor did Ames himself, Joseph D. Brannan, William Schofield, or Louis Brandeis, who had been a classmate and study partner of Keener, as well as a student in Langdell's classes.⁵¹ Consequently, the revisionist thesis about a shift in the purpose or nature of case method originates in the 1910s with the Redlich Report and the Centennial History.

The explanation for this historiographical shift begins with the fact that in the early 1880s Langdell's personal mode of teaching changed. With his eyesight rapidly deteriorating, he gave up Socratic questioning and began to lecture, imparting his own analysis of the cases that students were assigned to read. Many students later noted the change, as did Beale himself.⁵²

In 1892, near the end of Langdell's tenure as dean, Beale joined the HLS faculty full-time and subsequently achieved prominence under the guidance of Langdell's successor, Ames. It was Ames who nominated Beale to serve as founding dean of the University of Chicago Law School and arranged for his leave of absence from 1902 to 1904 in order to take up the post. Ames thus served as the mentor and patron of Beale, who later recalled, "To this day, I can hardly speak of him without a tremor in my voice. He must have realized this devotion to the students meant his own failure to gain lasting distinction as a scholar and yet, instead of furthering his own fame, he preferred to rouse to flame the minds of many students."⁵³ After returning from Chicago, Beale joined Samuel Williston and Ames in constituting "the Executive Committee" of the HLS faculty. The triumvirate of Ames, Beale, and Williston collaborated until Ames suffered a nervous breakdown in late 1909 and died early in 1910, leaving Beale, in his own words, "almost stupefied" with grief.⁵⁴

In certain obituaries and memorials of Ames, there was intimated for the first time the view that not Langdell, but "Prof. Ames developed the 'Harvard' system or 'case system' of teaching law which is the best recognized modern method"⁵⁵ because Ames "aimed not so much to impart information, as to develop the analytical powers of the men, to make them think as lawyers."⁵⁶ In contrast, however, other eulogists did not credit Ames in this regard at all, or even cautioned against heeding all that "has been said ... by those who came under ... Professor Ames' method of teaching law."⁵⁷

The mourning for Ames was scarcely finished in 1913, when Josef Redlich visited law schools in the United States for his Carnegie study, and Beale and his former classmate Williston were the senior, active professors on the HLS faculty. For the two-day visit to each school, Redlich had asked to witness the classes in Contracts and Constitutional Law; but Dean Ezra R. Thayer ignored Redlich's request and shepherded him to different classes taught by Beale and Williston.⁵⁸ This provided the opportunity for Beale and Williston to explain to Redlich that their mentor Ames had eclipsed the teaching and decanal work of Langdell, whom they had never known in his prime.

The role of Keener, proposed by Redlich, can be explained by factors analogous to those at HLS. Keener died in April 1913, an event that focused attention upon his accomplishments at Columbia University Law School, where he was regarded as the leader of "the revolution of 1891."⁵⁹ Six months later, Redlich visited Columbia, the first law school on his itinerary, and met Dean Harlan Stone, who had been worried about Redlich's evaluation. Stone provided Redlich "with a good deal of material relating to the case method of instruction and the development of both Harvard and Columbia Law Schools."⁶⁰ Here was the perfect opportunity for Stone, and others at Columbia, the largest university law school in the country, to affirm that their Keener had surpassed Langdell's method. Such an affirmation would have been welcome to Redlich, whose chief qualification was his absence of allegiance to a particular American school and who, therefore, was receptive to balancing the preponderance of attention that had to be devoted to Harvard in his report.⁶¹ The purposes of both Stone and Redlich were served by the thesis that Keener developed "a completely changed conception of the purpose" of case method teaching.

Back in Cambridge, the anomalous, Keener thesis was nowhere mentioned, let alone credited. It was Ames whom Beale cast in the leading role in the narrative of the Centennial History, which was apparently shaped by several factors. First, there was Beale's recollection of the mid-1880s, when Langdell's teaching was eclipsed by Ames's and Keener's. In addition, there was the new interpretation launched in eulogies of Ames, attributing to him a transformation of case method. Even more influential was Beale's purpose of extolling Ames and rectifying the injustice that Ames's "devotion to the students meant his own failure to gain lasting distinction."⁶² Fourth was Beale's purpose to solicit financial support from alumni of his generation, then in their fifties, who had never know Langdell in his prime and looked instead to Ames.

While the Redlich report and the Centennial History introduced in the 1910s the revisionist view that Langdell did not truly practice or understand his invention of case method, a competing revisionist view that Langdell did not invent the method at all was increasingly heard. This latter revisionist view that case method was a longstanding pedagogy was expressed by those who dismissed the new style of teaching or begrudged the stature of Langdell or HLS. For example, Langdell's long-time detractor Joseph H. Choate maintained that "every great lawyer in the times that preceded [Langdell's] establishment of [case method] at Harvard had perfected himself in that way, by the study of cases."⁶³ Among the opponents of case method at other law schools, the most prominent and insistent figure making this claim was Simeon E. Baldwin of Yale who repeatedly depreciated the Harvard innovation on the grounds that teaching with cases had long been conventional in all law schools and originated not with Langdell but, remarkably enough, a Yale graduate, Zephaniah Swift.⁶⁴ Such claims induced other law schools to invoke their favorite sons, as when the University of Mississippi asserted that Lucius Q. C. Lamar introduced "three years before Christopher Langdell ... a method of teaching from adjudicated cases that was in essence the very same as the Case System."⁶⁵ All such assertions were put in doubt as they multiplied and as they received scrutiny, revealing about Lamar, for example, that "none of the cited material supports" the claim.⁶⁶

The revisionism of the 1910s thus staked out a number of positions, several of which were inconsistent but all of which shared the purpose of demoting Langdell. Particularly in regard to his signature teaching method, the revisionists maintained that Langdell did not invent case method or that, if he did, then he did not really practice it or that, if he invented and practiced it, then he really did not understand its nature and purpose. Demonstrated by their inconsistency, the purpose of these efforts was apparently to elevate a revered mentor, as in the case of Beale, or the favorite son of a law school, as with Columbia or Mississippi, or generally to demonstrate that "not literally all good things are first thought of in Cambridge."⁶⁷

IV. Counter-revisionism and Response, 1920s

The visibility and wide circulation of the revisionism appearing in the Redlich Report and Centennial History prompted two individuals to write counter-statements. The two authors attempted to "to give some accurate description of those days" early in Langdell's administration and teaching, based upon their participation in the events.⁶⁸ Though not explicit, the corrective purpose is evident from the substance, tone, and circumstances of these two, lesser-known essays that appeared together in the Harvard Law Review in 1920.

One author was Charles W. Eliot, then retired, who had written in 1915 to the head of the Carnegie Foundation that, in his forty years as president, "the putting of Langdell in charge of the Law School was the best piece of work I did for Harvard University," along with two other reforms.⁶⁹ Addressing primarily the curricular and administrative changes, Eliot portrayed Langdell as the initiator and responsible agent.⁷⁰ The subject of Langdell's teaching dominated the accompanying article by Franklin G. Fessenden, a Massachusetts Superior Court Justice, whose longstanding relationship with both Langdell and Eliot is illuminating. In September 1870, Fessenden arrived at HLS where he was personally interviewed by Dean Langdell, enrolled in the first course taught by case method, and joined the group of seven devotees known as "Kit's Freshmen."⁷¹ As the enrollments in Langdell's case-method courses tumbled to a few students, President Eliot took the extraordinary step of calling students, including Fessenden, into his office to ask their opinion of Langdell's classes. "Fessenden, a first-year student of about three months, was flabbergasted, but he swallowed his astonishment and said, 'Well, Mr. President, I can go to Prof. Washburn's lectures and hear him read a chapter from his book on real property. I can go to Prof. Parson's lectures and hear him read a chapter from his book. But I learned to read before I came down here. When I go to Prof. Langdell's lectures, I get something that I cannot find in any book.'"⁷²

Drawing upon such experiences as a student in the early 1870s and as a teacher at HLS in the early 1880s, Fessenden began working on his counter-revisionist essay soon after the appearance of the Centennial History in 1918 and sent drafts to Eliot, Dean Roscoe Pound, Samuel Williston, and a few older alumni. After considering where the article would "carry farther," Pound, Eliot, and Fessenden arranged for publication in the Harvard Law Review.⁷³ Fessenden's essay maintained that increases in admissions criteria, academic standards, and intellectual seriousness "originated with Langdell and meant an entire change" in the School, and such changes were "condemned in advance by practically all." In regard to teaching, he asserted that "[t]he result of the method of Langdell was active search and inquiry; that of the other professors was passive absorption." Langdell achieved this result, in part, because, in responding to students' misdirected replies, "Langdell had the rare gift of making remarks in a way which would indicate the real question, without discouraging pertinent inquiry."⁷⁴ In contrast to Redlich's and Beale's thesis that Keener or Ames introduced the new purpose of developing legal thinking, Fessenden asserted "that Langdell was not undertaking at all to state what the rules of law were, that his real purpose was to incite the young men before him to find them by their own researches, and that he felt his own opinions to be of no consequence when compared with the importance of leading them to think and form their own judgments." Pointedly, Fessenden concluded, "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. Later, as his eyesight became impaired, he was driven to give up the best of his method and lecture."⁷⁵ In this fashion, Fessenden offered the most detailed account of Langdell's teaching in the early 1870s, which Eliot called "all true."⁷⁶

Although the counter-statements of Fessenden and Eliot would do little to impede the influence of the highly visible Redlich report or Centennial History,⁷⁷ Beale apparently felt the need to respond.⁷⁸ A perfect opportunity arose in 1928 when Samuel E. Morison invited him to write a historical account of Harvard Law School for a volume of essays.⁷⁹ In drafting his account, Beale sharpened his claim that Ames was the real pedagogical innovator and built up to an extraordinarily sentimental paean for "the beloved Dean" Ames in contrast to "the first Dean" Langdell.⁸⁰

Beale sent the draft to Chafee, his junior collaborator on the Centennial History, who questioned Beale's elevation of Ames above Langdell.⁸¹ Others apparently had similar reservations because Beale's essay never appeared in Morison's collection. Instead, a chapter was prepared by Dean Roscoe Pound, who prepared a catalog of Langdell's "achievements": "introduction and establishment of the method of teaching from adjudicated cases; advance in requirements for admission...; a regular system of examinations and definite requirements for graduation; organization of the curriculum on a reasoned basis; organization of the administration of the school; and the building up of a law library. ..."⁸²

Not to be denied, Beale made another influential attempt at codifying the revisionist view. In 1931 he published in the New York University Law Quarterly Review an article presenting brief portraits of the four professors who had spanned the last quarter of the nineteenth century during the transformation of HLS: Langdell, Ames, James B. Thayer, and John C. Gray. Drawing language from his essay rejected for Morison's collection, Beale canonized Ames, who "devoted his life to his students. He taught them the law, he helped them in all their troubles, he became their dear friend and their model of honor and uprightness.... They called him 'The Good Dean,' and they loved him as few teachers have been loved. To this day, I can hardly speak of him without a tremor in my voice."⁸³ In contrast, Langdell was contemptibly portrayed as "a rather helpless-looking figure." His mind was that of a "careful plodding ... medieval-minded recluse"; his case method was merely the unsocratic quizzing of antebellum recitation inasmuch as the purpose of "his teaching method was to question students in order to make sure they had read their cases." In character, Langdell was described as self-absorbed, for he "had a weakness for his own legal ideas, and rather resented having any one else express them."⁸⁴

Overall, these exchanges between Beale and the counter-revisionists during the 1920s seem to be explained primarily by the personal allegiances of the proponents and the periods and circumstances in which they knew Langdell. An additional factor contributing to Beale's particularly derogatory view published in 1931 was likely the shift in ideological context. Beale may have been trying to break the association of "Bealism" with Langdell's education and jurisprudence.⁸⁵ By 1931 to praise or credit Langdell was to risk being identified with his caricature that was becoming fashionable amid the Pragmatic and Realist turn in jurisprudence occurring in the 1920s and 1930s. Samuel Williston's writings on Langdell exhibit a similar purpose of dissociating Langdell from all that was good at HLS in view of the development that Langdell represented to the Realist vanguard all that was bad in jurisprudence.⁸⁶

These factors of personal allegiance, circumstances of acquaintance, and ideological purpose appear to explain Fessenden's and Eliot's counter-revisionism and Beale's response. Nevertheless, it was Beale's that became authoritative and was recently reprinted in The History of Legal Education in the United States (1999).⁸⁷

V. Age of Caricature, 1924–1970s

The inconsistency between the elevating and depreciating interpretations of Langdell prior to 1930 was resolved by the high profile and wide circulation of both the Redlich Report and Centennial History, which established the putatively reliable account of Langdell for decades to come. Drawing directly or indirectly from those two sources, even the most careful and informed scholars would still be saying at the end of the twentieth century that, for example, "Langdell's ... disciples, especially James Barr Ames and William A. Keener, developed what we recognize today as the case method of legal education."⁸⁸ This proposition—never asserted prior to 1910—acts virtually as a chemical tracer through the historiography for the influence of the revisionist view.

Beyond being codified, the revisionist interpretation was flattened and formalized into a caricature repeated in subsequent decades. The caricature was then taken for granted both because of its repetition and its utility in casting Langdell as the exemplar of "classical legal thought" or "classical legal formalism."⁸⁹ In this way, the caricature became not a conclusion drawn from examining the evidence about Langdell, but a premise about how to interpret Langdell's writings, only a fraction of which were examined and then but rarely. Ultimately, original evidence about Langdell could be dismissed on the grounds that it did not fit what scholars knew "Langdellian" meant.⁹⁰ The following discussion addresses four writings exemplifying and advancing the caricaturization of Langdell over the second and third quarters of the twentieth century.

Langdell's caricature was ushered into the literature in 1924 when Batch-elder revised his popular 1906 essay for a collection entitled Bits of Harvard History, which closed with two of his best known articles. First was "Wanted!—'College Characters'" in which Batchelder described colorful individuals who made Harvard "as full of characters as a novel by Dickens." These included "Clary, the darkey janitor," as well as the fruit-peddler "'John the Orangeman,' a native of County Kerry."⁹¹ From "Clary the darkey janitor" and "John the Orangeman," it was only a step to another contemporaneous "college character" of Scot-Irish descent portrayed in the closing chapter of Bits of Harvard History: "Langdell, Iconoclast."⁹²

Batchelder prepared "C. C. Langdell, Iconoclast" for publication not by canvassing the results of biographical research that had been published since 1906, but by drawing from the Centennial History a brief list of points, which he then added as changes and footnotes on a copy of the 1906 essay.⁹³ These few changes accentuated Langdell's retiring nature and "awkward countrified manners" and incorporated the revisionist view that "It was Ames who fully developed the Socratic method of teaching: Langdell never encouraged much discussion in class, and in later life was so brimful of his subject that he confined himself entirely to straight lecturing."⁹⁴

As a result, Batchelder's revision was oddly inconsistent. It preserved nearly all of his triumphal 1906 essay, with its account of Langdell's highly Socratic and inductive method from the early 1870s, while also incorporating the detracting revisionist view.⁹⁵ Batchelder then solicited feedback from the acknowledged authority on Harvard Law School history, Joseph Beale, who recommended only minor changes.⁹⁶ In this way, Batchelder stamped reclusiveness and self-absorption into a Langdellian "college character" that became more widely available than the 1906 version published in The Green Bag, A Useless but Entertaining Magazine for Lawyers.

This caricature—cobbling an iconoclastic, rigid, reclusive personality with the central thesis of the Centennial History elevating Ames and demoting Langdell—was highly serviceable to the Realist or "functionalist" movement of jurisprudence that attracted widespread attention in the 1920s and dominated jurisprudential debate in the 1930s and 1940s.⁹⁷ By "increasing the stress laid upon the practical social or economic effect [or cause] of deciding a given legal problem in one way or another," the Realist movement discounted "the value of analytical logic as a solvent of legal problems" and championed a "revolt against the method sponsored by Langdell as a means of prophetic determination of the law."⁹⁸ This revolt was served by the revisionist portrayal of Langdell as a maladjusted, self-absorbed logician, who did not create, understand, or practice case method. A warped personality befitted a rigid mind that rendered an artificially narrow jurisprudence transmitted by dogmatic teaching.

The Realists' view of Langdell was authorized not only by the revisionist interpretation, but also by their patron saint Oliver Wendell Holmes, Jr., who had characteristically gibed Langdell in certain aphoristic appraisals. Most notably, Holmes in 1880 criticized what he considered to be Langdell's rigidly logical approach to jurisprudence, pointing particularly to Langdell's passing comment that "substantial justice and the interests of the parties" were "irrelevant" to analysis of the mailbox rule in contract law. This logical "habit of mind" led Holmes to call Langdell "the greatest living theologian" and to issue the reprimand: "The life of the law has not been logic; it has been experience."⁹⁹ The latter aphorism, subsequently enshrined in the opening lines of The Common Law, became "the most famous Holmes' quotation of all" and "the most famous sentence he ever wrote"¹⁰⁰ and contributed to casting Langdell and Holmes as antithetical throughout the second and third quarters of the twentieth century.

Holmes's jurisprudence is now understood to incorporate many divergent and contradictory themes, and his relationship with Langdell is no less complex. Such nuances were generally overlooked by the Realists in extracting and disseminating a uniformly derogatory view of Langdell drawn from Holmes's writings during the 1930s when "Holmes hagiography was at its flood."¹⁰¹ The high water mark was reached at the end of the decade with the literal trashing of Langdell's presumptively worthless papers at the Harvard archives, while the mere notices and jottings of Holmes were being edited and published for a receptive scholarly audience.¹⁰² Meanwhile the debate over legal Realism moved to center stage, prompted significantly by the writings of Jerome Frank, which became the "locus classicus" identifying Langdell as the personification of jurisprudential and educational error.¹⁰³ An early self-proclaimed Realist, Frank was noted for his psychological functionalism. Whereas other Realists emphasized the social and economic functions served by law, Frank maintained that judges' decisions were shaped primarily by their own psychological purposes and traits and he entitled his classic work Law and the Modern Mind.¹⁰⁴

Focusing upon Langdell in 1933, Frank identified the source of artificial and immature jurisprudence to be legal education that "is founded upon the ideas of Christopher Columbus Langdell," whereby "law-school law came to mean 'library law.'"¹⁰⁵ True, Langdell's study of cases emulated an empirical, rather than logical, approach, said Frank. But the written case reports, constituting "data" in Langdell's supposedly scientific case method of teaching, disclosed only the concluding judicial decisions, not the psychological, social, and economic forces actually constituting a "case." Nevertheless, Langdell's model became normative, and "for some three decades it was almost impossible for a man to obtain a legal education in a [university] law school that was not Langdellian." This "Langdellian training" exclusively addressed "the very limited (although real) importance in the actual legal world of so-called substantive law and of so-called legal rules and principles" and neglected the primary role of psychological, social, and economic forces.¹⁰⁶

Faithful to his psychological hermeneutic, Frank attributed Langdell's model of legal education to "that man's peculiar temperament" and "idiosyncrasies." In support of this interpretation, Frank reported evidence and quoted description of Langdell's "peculiarly secluded life," his "obsessive and almost exclusive interest in books," and his lack of experience or success in "the rough-and-tumble activities of the average lawyer's life," all drawn from "his biographer." This unidentified biographer was none other than the "official historian of Harvard Law School" who wrote the Centennial History¹⁰⁷ and incorporated the account of Langdell's legal practice from Batchelder. In this fashion, the obscuring sedimentation of the literature commenced, as scholars began to read and cite sources only in the layers deposited just prior to them. Ironically, they did this in two opposite ways by the 1930s. On the one hand, those rejecting the HLS model, such as Frank, identified it with Langdell; on the other hand, those advocating the HLS model dissociated it from Langdell and attributed it to Ames. The one consistent theme was depreciation of Langdell.

Frank was oblivious to the irony because he selected only evidence suitable for his argument, making little attempt to survey the available historiography and no effort to seek out original sources concerning his fundamental premise that Langdell had had little experience or success in practicing law and litigating cases. Despite the selective evidence, Frank's psychological interpretation, anticipated by Beale's writings, was widely credited; and the layering of sources is demonstrated by Frank's 1947 article in the Yale Law Journal. Repeating and extending his argument of fourteen years earlier, Frank sharpened his rhetoric, calling Langdell "a brilliant neurotic" and asserting that "the neurotic escapist character of Langdell stamped itself on the educational programs of our leading law schools."¹⁰⁸ For documentation, Frank cited his own 1933 article and the Centennial History. The deepening sedimentation of sources is shown by Frank's writings subsequently being invoked as credible testimony of Langdell's maladjusted character.¹⁰⁹

Jerome Frank's writings thus exemplify the caricaturization of Langdell occurring in sophisticated discussion at the intersection of the profession and academe during the 1930s and 1940s. Equally significant is the appearance of the caricature in an acclaimed work of specialized, original research addressing the period of Langdell's most significant activity—Philip Wiener's Evolution and the Founders of Pragmatism (1949), still in print and cited by scholars through the end of the twentieth century.¹¹⁰ Addressing the influence of evolutionary and inductive science upon the emergence of philosophical Pragmatism in the early 1870s, Wiener examines the intellectual background and contribution of seven individuals associated with the inception of Pragmatism. These include three educated in natural science—Charles S. Peirce, William James, and Chauncey Wright—and four who were trained in law at HLS: John Fiske, Nicholas St. John Green, Oliver Wendell Holmes, Jr., and John B. Warner.¹¹¹

No less remarkable than the link between HLS and the majority of these "founders" of Pragmatism is the fact that the four "pragmatic lawyers"¹¹² were colleagues or students of Langdell and approved his educational reforms. Though Holmes is traditionally understood to be a relentless critic of Langdell, he endorsed Langdell's case method and even certain doctrinal views.¹¹³ Nicholas St. John Green was a significant ally of Langdell on the HLS faculty in the early 1870s.¹¹⁴ John B. Warner was one of "Kit's freshmen" during his attendance at HLS from 1871 to 1874. Finally, Langdell's approach to education resembled that of the fourth "Pragmatic lawyer," John Fiske,¹¹⁵ who boarded at the same table as Langdell in the early 1870s.

No mention is made of these approving views in Wiener's book. Instead, Langdell is depicted as antithetical to "the inductive logic" of "our Harvard lawyers." Indeed, "Green, Warner, and Holmes found Langdell's 'case method' a mechanical travesty on the historical life of the law," according to Wiener, whose account of the "iconoclastic" Langdell is drawn from Batchelder's 1924 essay. In fact, Wiener quotes authoritatively the revisionist view that Batchelder drew from the Centennial History and added in 1924: "It was Ames who fully developed the Socratic case method of teaching: Langdell never encouraged much discussion in class and later in life was so brimful of his subject that he confined himself to straight lecturing."¹¹⁶

Given Wiener's careful research in the published and unpublished sources on other topics, his invocation of Langdell's caricature demonstrates its unquestioned credibility by 1949. Moreover, within Batchelder's 1924 essay, Wiener had to choose between two distinct portrayals of Langdell's teaching: the subsumed, 1906, Socratic, inductive Langdell and the overlaid, 1924, brimful, pedantic Langdell. According to Batchelder's 1906 presentation, Langdell would have fit well among the "pragmatic lawyers"; and Holmes's approbation and Warner's membership among "the first converts to" Langdell's teaching and among "Kit's freshmen" would have fallen into place as well.¹¹⁷ But these points were inconsistent with Langdell's caricature established during the 1930s and 1940s; hence, Wiener ignored Batchelder's own testimony about Warner and inferred from the caricature that Warner must have "found Langdell's case method a mechanical travesty."

The revisionist caricature that Wiener believed to be truly "Langdellian" thus served as a premise by which to select the evidence. The premise operated similarly in regard to Wiener's inclusion of Holmes among those who "found Langdell's 'case method' a mechanical travesty." Wiener did not discuss or document this reference to Holmes, who has left on record his endorsement and adoption of Langdell's case method. Wiener merely inferred that Holmes must have disdained Langdell's case method from the uniform opposition presumed to exist between them.

An examination of the evidence thus reveals the appeal to the Langdellian caricature to explain events. This uncritical appeal in specialized studies by such careful scholars as Philip Wiener demonstrates its credibility in the 1940s and 1950s. Inevitably, eminent historians writing tertiary accounts relying on secondary sources, such as James W. Hurst, repeated and thereby added credibility to the distortion. Such tertiary accounts then served as authorities for subsequent general histories, as that by Lawrence Friedman, deepening the sedimentation of sources and further adding credibility to the caricature.¹¹⁸

The Age of Caricature culminated in the writings of Grant Gilmore during the 1970s. Known for his contrarian style, Gilmore's signal commentary on Langdell appeared in his Death of Contract (1974) and Ages of American Law (1977). These works attribute to Langdell the idea of creating a unified theory for contract law and, more generally, a unified theory for each domain of law. But, reluctant to credit Langdell in the least respect, Gilmore held that "Langdell somehow stumbled across," or "did little more than launch," or made "the almost inadvertent discovery of the general theory of Contract." Furthermore, Gilmore found repugnant "the basic idea of the Langdellian revolution ... that there really is such a thing as the one true rule of law, universal and unchanging, always and everywhere the same." Hence, "Langdell was an industrious researcher of no distinction whatever either of mind or ... of style."¹¹⁹ In fact, "Langdell seems to have been an essentially stupid man who, early in his life, hit on one great idea to which, thereafter, he clung with all the tenacity of genius.... However absurd, however mischievous, however deeply rooted in error it may have been, Langdell's idea shaped our legal thinking for fifty years."¹²⁰

In support of these assertions, Gilmore seems not to have examined a single text of Langdell. He discussed and quoted Langdell's casebook and summary of contracts; but the heavily documented Death of Contract cited all its material about Langdell, including quotations, to Arthur Sutherland's lightly documented, semi-official history of HLS that was published in 1967 and incorporated the revisionist view of Langdell found in the Centennial History.¹²¹ Then in Ages of American Law, Gilmore, like Jerome Frank in his later writings, cited as authorities his own Death of Contract and Sutherland's derivative history cited earlier.¹²²

Consulting only the latest layer of sources, Gilmore fit Langdell into a Procrustean bed, just as he accused Langdell of doing to law. Gilmore's premise about the nature of Langdell's mind came from the revisionist caricature, which Gilmore read into Langdell's Summary of the Law of Contracts: "the explanation, typically, is dogmatic rather than reasoned; Langdell knew right from wrong, no doubt by divine revelation, and that should suffice for the student." Adhering to the caricature of Langdell's teaching, Gilmore asserted that "case-method teaching ... [a]t least in Langdell's version ... had nothing whatever to do with getting students to think for themselves; it was, on the contrary, a method of indoctrination through brainwashing." In this way, the nature of Langdell's intellect and jurisprudence was revealed in the Summary, and the Summary disclosed the usage of the casebook, "explaining which cases are 'right' and which are 'wrong.'"¹²³ In Gilmore's logical, uniform, and formalistic account, Langdell's mind, jurisprudence, summary, teaching, and casebook were all dogmatic, and all were consistent with each other and with the revisionist caricature.

The problem here—as with Jerome Frank's assumption about Langdell's legal practice and with Philip Wiener's assumption about Langdell's relations with the "pragmatic lawyers"—is that even a cursory review of the evidence belies Gilmore's assumed uniformity among the dimensions of Langdell's work. Those who knew Langdell in the 1870s consistently report that his early teaching was both reviled and applauded precisely because it was not dogmatic and forced students to think for themselves. Hence, Gilmore's inference from the putatively dogmatic Summary to Langdell's casebook and teaching is contradicted. In addition, there is Langdell's own explanation for writing a summary, neglected by Gilmore, in which Langdell explains that the summary is "a supplement" to the casebook for those who desire it, but "there is no necessary connection between the two" and "some persons ... may want the Summary who will not care for the Cases" and vice versa.¹²⁴ Hence, Gilmore's inference that Langdell's summary and case-book have consistent purposes or audiences is again contradicted.

Finally, Gilmore's inferring the nature of a professor's mind from a didactic textbook is opposed by the commonsensical rejoinder of Holmes himself. After criticizing Langdell's Summary in the review quoted above, Holmes concedes: "But it is to be remembered that the [Summary] is published for use at a law school, and that for that purpose dogmatic teaching is a necessity, if any thing is to be taught within the limited time of the student's course. A professor must start with a system as an arbitrary fact, and the most which can be hoped for is to make the student see how it hangs together and thus to send him into practice with something more than a rag-bag of details."¹²⁵

In sum, Gilmore's interpretation amounts to an extended gloss on Holmes's comment about Langdell's view of the mailbox rule. But Gilmore's presumption about the consistency among Langdell's intellect, teaching, case-book, and summary is contradicted by the historical record. To understand the complex relationships among these dimensions of Langdell's work requires careful analysis of the published and archival evidence. Gilmore was interested less in this understanding, than in identifying an exemplar for his "Age of Faith." As he said, "A better symbol could hardly be found; if Langdell had not existed, we would have had to invent him."¹²⁶ In these words, Gilmore expresses an ideological purpose contributing to the Langdell problem.

Over the previous fifty years, the scholarship on Langdell had ignored most of the evidence that would normally be considered in a scholarly analysis of a historical figure. Moreover, the original sources were becoming buried so deeply under sediments of publications that the neglect was obscured and Gilmore's view was widely taken as authoritative. For example, the next generation studying American Legal History at Langdell's own law school learned about Langdell by reading the relevant selections in the Death of Contract and Ages of American Law.¹²⁷ Meanwhile, Gilmore's "useful" statements were quoted in virtually every analysis of Langdell published after 1980, for "Gilmore summed up the 'dogmatic orthodoxy' of Langdell's method.... Langdellianism was an effective technique of indoctrination, socialization, and ideological regimentation, nothing more."¹²⁸

VI. Reassessment and Return to the Sources, 1980s–

Even as Gilmore's interpretation was routinely invoked after 1980, some began to question legal scholars' addiction to the Realist tincture of 1910s' revisionism. On the one hand, this dissatisfaction arose from an almost instinctive reaction against "the most facile characterization" of Grant Gilmore,¹²⁹ prompting efforts to develop a substantive reassessment of Langdell. On the other hand, a significant impetus for reassessment was evidentiary. The persistent reliance on the most recent secondary authorities stimulated efforts to dig through the sediments to reach the original sources. While some scholars in the 1980s and 1990s followed one or the other track of reassessment, most advances in scholarship occurred when both the substantive and evidentiary lines of inquiry were present. By the end of the twentieth century, a profusion of studies about Langdell had appeared. In the closing section of this essay, space permits discussion of only a few such studies.

In 1980 Marcia Speziale published an explicit attack upon Langdell's "caricature" that she attributes to Gilmore and to "the skeptical Realists" more generally.¹³⁰ Though frequently cited,¹³¹ Speziale's interpretation has had little influence, and the extent to which her article surpassed the evidentiary and substantive standards of the previous sixty years is not appreciated. Speziale is the first scholar in the twentieth century to dig through the sedimented secondary literature published about Langdell since his death. She examines the early memorialists; the biographical researchers Batchelder, Warren, and Ames; the revisionists Redlich and the Centennial History; the counter-revisionists Fessenden and Eliot; and the caricaturists Batchelder, Frank, and Gilmore. This spadework was the necessary precursor to consulting the original sources, because a full bibliography of Langdell's publications, let alone his unpublished writings, did not exist. Consequently, Speziale's research in the original sources was limited to a few of the published writings each of Langdell and Holmes.

Based on this evidence, Speziale argues, first, that Langdell's writing and teaching exhibit "empiricism and organicism," rather than the deductive formalism long attributed to him. In fact, the historical Langdell "really might have been the first 'anti-Langdellian.'" Second, Speziale attributes Langdell's "empiricism and organicism," to the Darwinian conception of natural science because Langdell's views "parallel nineteenth-century empiricist and evolutionist thinking."¹³²

The neglect of Speziale's thesis may be attributed to its publication in a new and less prestigious journal, as well as to the emergence during the subsequent decade of Critical Legal Studies, neo-Pragmatism, and "the interpretive turn" in legal theory,¹³³ all of which found the Langdellian caricature a useful foil, just as the Realists had. In other words, there persisted a strong ideological motivation to keep Langdell in Gilmore's Procustean bed. Apart from those reasons for neglect, Speziale's thesis exceeds the limits of her sources, because she provides no evidence to show that the posited parallelism resulted from the influence of scientific discussion upon Langdell. The speculative character of her argument is demonstrated by the subsequent publication of more extensive, analogous arguments attributing Langdell's jurisprudential "science" to deductive geometry or to antebellum "Protestant Baconianism."¹³⁴ In each case, the scholar identifies an intellectual tradition within mathematical or natural science, makes a congruent interpretation of Langdell's thought, and infers causal influence. But the inference, being unconfirmed by evidence, is conjectural, as demonstrated by the assertion of these three different, even irreconcilable interpretations.

Contemporaneous with Speziale's work, there appeared another pioneering reassessment of Langdell, conveyed in two articles by Anthony Chase. Though examining only a fraction of the secondary literature known to Speziale, Chase makes an evidentiary contribution in warning about Gilmore's "extremely limited sampling" of primary sources and calling attention to the neglect of Langdell's decanal reports. Chase also contributes to the substantive reassessment by challenging the portrayals of Langdell by Jerome Frank, Grant Gilmore and, derivatively, Joel Seligman.¹³⁵

In the first, 1979 article, Chase undertakes to show that case method teaching originated not with Langdell, but with Charles W. Eliot who borrowed it from clinical instruction at the medical school and applied it to the law school. This borrowing reveals, more fundamentally, that case method arose out of a broad cultural movement toward professionalism and clinical education, says Chase. While these conclusions have been widely applauded¹³⁶ and Chase exhibited brilliant intuition in seeking to contextualize Langdell's reforms within professional culture, the steps in his argument cannot bear scrutiny.

The first step is to maintain that case method at HLS should be understood through the views of President Eliot, rather than Langdell or the HLS faculty. But no evidence is presented showing that Eliot's views influenced Langdell or other professors at HLS.¹³⁷ The next step is to show that Eliot championed clinical education at the medical school and invoked it when explaining case method at the law school. Yet, Chase cites only one unconvincing example of Eliot linking clinical, medical education to legal education.¹³⁸ Chase concludes the 1979 article by citing Michel Foucault's Birth of the Clinic (1973) to authorize the attribution of Eliot's action to a larger cultural movement toward professionalism and clinical education.¹³⁹ Here again, no evidence for the causal relationship is presented, and the reader begins to suspect that the entire article owes more to reading Foucault than the original sources concerning HLS case method.

In a longer 1981 article, Chase, like Frank and Gilmore, deposits another layer in the literature by taking it for granted that his prior essay demonstrated that "the early victories won by clinical instruction at the Harvard Medical School made it the model for all subsequent legal instruction in the United States." He then repeats and elaborates the Foucaultian argument and attributes the legal modeling upon clinical medical education to Langdell's and Eliot's understanding of "the necessary relationship between modern professionalism and the educational process through which new members of the professions would be recruited and trained."¹⁴⁰

These conclusions are all conjectural, and their widespread invocation and approbation demonstrate some important points about the Langdell problem in the era of reassessment. First, the tendency persists to endorse interpretations and to cite secondary sources without carefully examining the underlying evidence. Second, substantive reassessment of Langdell appears to face a dilemma. On the one hand, many scholars are dissatisfied with Langdell's caricature even as the phrases of Jerome Frank and Grant Gilmore are repeatedly quoted. On the other hand, the mountain of sedimented literature repeating the derogatory image stands in the way of reassessing Langdell. Hence, it is too facile to caricaturize Langdell and too outlandish to rehabilitate him.

A common strategy to negotiate this dilemma, exemplified by Chase, is to attribute to Langdell beneficial ideas or policies, but to credit their source or effect to another individual, as Chase does to Eliot, or to broad cultural forces, as Chase invokes Foucault. In short, the claim is that Langdell made inadvertent contributions to legal education or law. Because Chase's arguments are simply not sound, their appeal may lie in this attractive strategy of inadvertence, reminiscent of Gilmore's attribution to Langdell of "the almost inadvertent discovery of the general theory of Contract."¹⁴¹

In 1983 Thomas Grey published one of the most influential and "celebrated" reassessments of Langdell.¹⁴² Extending the evidentiary reassessment, Grey examined more of Langdell's publications more deeply than had any commentator since the 1920s. In absolute terms, however, Grey neglects the half of Langdell's writings consisting of unpublished lecture notes, papers, letters, and briefs of cases. Of the published half, which Grey calls "the Langdellian corpus,"¹⁴³ he cites all three of Langdell's doctrinal summaries, one of his casebooks, and four of his independent articles in the Harvard Law Review, as well as one of Langdell's essays about Harvard Law School. This cited material constitutes about half of Langdell's publications. Within this cited quarter of Langdell's writings, Grey's focus is quite limited, because he marginalizes the subjects of pleading, procedure, and equity jurisdiction to which Langdell devoted about two-thirds of his lawyering, teaching, and publishing, as well as the subjects in commercial law, to which Langdell devoted about two-ninths of his work. In the end, Grey focuses on about one-ninth of Langdell's total writings: Summary of the Law of Contracts.

Grey's evidentiary focus suits his substantive analysis, presenting the most sophisticated understanding of Langdell as the exemplar of "classical legal thought" or "classical orthodoxy," which "haunts us still."¹⁴⁴ Commensurately, Grey maintains that Langdell excludes, marginalizes, or declares exceptional or anomalous areas or points that do not fit within "the geometric structure of law's universally formal conceptual order." This excluded territory comprises certain judicial decisions; certain unformalized areas of law, such as commercial law, public law, and procedure;¹⁴⁵ and, above all, the domains of policy and justice. The latter two, cardinal domains are subsumed by Grey under the category of "acceptability."¹⁴⁶ Langdell's exclusion of acceptability is exemplified for Grey by Langdell's comment that "substantial justice and the interests of the parties" were "irrelevant" to analysis of the mailbox rule in contract law. This view "has ever since been taken to express the wretched essence of his kind of legal thinking."¹⁴⁷ Commensurately, Grey cites Holmes's critique of Langdell on this point and repeatedly contrasts him with Langdell. As Langdell stood to Holmes, "so stood classical orthodoxy to modern legal thought generally: the indispensable foil, the parental dogma that shapes the heretical growth of a rebellious offspring."¹⁴⁸<