Sociological Jurisprudence

Legal formalism and laissez-faire promoted an interventionist role for judges, underscored the worth of legal science, and treated law as frozen, with its principles and values set and its rules determined for all time. But even while these views held sway in the late nineteenth century, they came under attack from members of the legal community who doubted the rejection of both experience and social facts that legal science implied and who urged a close tie between law and the practice of social science. These proponents of sociological jurisprudence took the position that judges ought not, as a matter of course, to use their power to interfere when the legislature, acting on sound evidence, had decided to pursue a certain policy. The most important voices were those of Oliver Wendell Holmes, Jr., Roscoe Pound, and Louis D. Brandeis.

Oliver Wendell Holmes, Jr., wrote at the end of the nineteenth century that "certainty . . . and repose," the elements that formalists deemed most valuable, would not be "the destiny" of U.S. law in the years to come. ²⁸ Holmes was a wounded veteran of the Civil War who had studied and taught at Harvard Law School, where he became a critic of Langdell's methods. Holmes went from Harvard to the bench of the Supreme Judicial Court of Massachusetts in 1882 and served as chief justice from 1899 to 1902, when he was appointed by Theodore Roosevelt to the U.S. Supreme Court.

He published The Common Law in 1881, and it was nothing less than a thorough history of the English common law and its development. The work contrasted sharply with the ideas of Langdell, Cooley, and Tiedeman because it reminded its reader that social and economic facts had to be taken into consideration in determining law. Holmes concluded that the greatness of the law was in its ability to adapt to changing circumstances and that this adaptive quality did much to give authority to the entire idea of the rule of law. Holmes wrote in The Common Law one of the most famous phrases of U.S. legal history. "The life of the law," he observed, "has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, institutions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than

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the syllogism in determining the rules by which men should be governed." ²⁹ Holmes, unlike the formalists, was willing to grant legislatures considerable authority to develop laws that fitted the circumstances of the new era of industrialization.

Roscoe Pound added his voice to the practical and social scientific view of law associated with Holmes. It was Pound who invented the term "sociological jurisprudence." He received a doctorate in botany from the University of Nebraska in 1897 after briefly studying law at Harvard, where he never received a degree. He was admitted to the Nebraska bar and practiced law while teaching botany at the University of Nebraska. Pound became a law professor at Harvard in 1910 and served as dean of the school from 1916 to 1936. A prolific author of legal scholarship, his essays and books ranged over a wide number of topics including criminal law, prison reform, and the organization of courts. Pound was especially critical of Langdell's approach to legal education if not his exact method, and he raised objections to the pinched view of science that Langdell and the legal formalists held. In 1912 Pound published an influential series of articles in the Harvard Law Review under the general title, "The Scope and Purpose of Sociological Jurisprudence." The term had little to do with the then-rising academic discipline of sociology. Rather, Pound meant by it an approach to law under which judges could and should weigh in the balance the social and economic consequences of their decisions. Pound's notions had implications for lawyers as well, because he urged on them the role of gathering and presenting evidence that would help a judge in reaching a determination about those consequences.

Louis D. Brandeis showed the bar how these notions could be given practical expression. Brandeis was the son of German-Jewish immigrant parents who had settled in Louisville, Kentucky. After graduating from Harvard Law School in 1878, he founded a highly successful corporate practice in Boston. Brandeis, however, was a Progressive to the core, and in the late nineteenth and early twentieth centuries he sought to promote his vision of an efficient and democratic society through two means. First, he was one of the original "prophets of regulation," believing that regulatory bodies, whose personnel were committed to scientific methods and empirical studies, would free the economy from the traditional distributive: influences of political parties. ³⁰

Second, Brandeis advanced his social agenda through legal advocacy. Reform groups retained him as counsel, and he offered "sociological briefs" on their behalf before both state and federal courts. These briefs were composed of extralegal materials "drawn from government labor statistics, reports of factory inspectors, and testimony from psychological, economic, and medical treaties." ³¹ Sources such as these had rarely been invoked in legal arguments before the twentieth century, and their large-scale use by Brandeis began a long-term trend in which judges and juries increasingly took into account certain social and economic facts surrounding a case as well as considering the law. President Wilson in 1916, over the outcries of legal formalists, elevated Brandeis to the Supreme Court, where he served as an associate justice until retirement in 1939.

New High Priests

Between 1860 and 1920 the practice of law in the United States became a profession whose basic tenets were congruent with the demands of an industrializing and urbaniz

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ing society. Lawyers accommodated and accepted these developments; they did not resist them. The elite of the bar, through law associations and influential law schools, turned toward a professional model that made legal culture more impersonal, scientific, and lucrative. The legal profession joined with the business community on many levels and consequently shared in both its socioeconomic advances and its national outlook, emerging as the "new high priests" of an increasingly legalistic, industrialized society.

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The Judicial Response to Industrialization: 1860-1920

Legal formalists, such as Tiedeman and Cooley, denounced regulatory and protective measures as "class legislation." They insisted that government should not use its power to improve the condition of one social group at the expense of another, or to alter the relative bargaining power of laborers and employers or consumers and producers. Their motives were mixed. They were concerned that popularly elected majorities would ravage the property of the rich and middle classes, undermining their wealth and the nation's economic expansion. As important, they also sought to preserve liberty." ¹ As a matter of constitutional right, they insisted that governmental policies should not redistribute justly earned wealth. On both the matter of public policy and constitutional liberty, they looked to the appellate judiciary, through the practice of judicial review and formalist legal doctrines, for support.

The courts during these years are often portrayed as reactionary and formalistic organs of laissez-faire. The behavior of the judiciary was more complex than this stereotype would suggest. Appellate judges did invoke laissez-faire principles in a few celebrated cases, but in most instances state and federal courts "moved consistently toward approval of a wide range of reform legislation" which, "although occasionally delayed in the courts, [was] not blocked there." ² Furthermore, some time after 1880, statutory legislation began to "grow prodigiously," becoming "the most dynamic sector of American law." ³ As a result, the task of appellate judging changed from its traditional emphasis on examining common law rules to assessing the intentions of legislators in passing a particular statute. Invariably, attorneys like Louis Brandeis pressed sociological briefs on judges, urging them to consider new types of information that bore upon these intentions.

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Judicial System

State Courts

The economic transformation of the United States after the Civil War prompted a growing recourse to the law. The range and scale of judicial activity expanded well beyond the bounds of the prewar years, with courts deciding an ever-increasing number of private disputes as well as determining public policy. Judges had a large and active hand in the governance of a rapidly changing society.

The system of federal, state, and local courts grew denser and more complex after the war. In 1900, for example, the federal courts included six territorial courts, special judicial commissions, the Court of Claims, sixty district and nine circuit courts of appeals, and the Supreme Court. The states had equally elaborate judicial structures. California had a state supreme court, twenty district courts, fifty-three county courts, numerous probate courts, justices' courts (in rural areas), and municipal courts. The pattern was much the same elsewhere: a high appellate court, with an intermediate court of appeals, then trial courts at the local level.

The lower courts bore the brunt of the growing recourse to law, and the composition of their dockets mirrored the social and economic changes that accompanied industrialization. The civil trials courts of Boston between 1880 and 1900, for example, "entertained the problems of about 20,000 plaintiffs a year." ⁴ These municipal courts served as forums in which the populace tried to settle problems relating to business, residence, finances, and injury associated with the growing complexity and anonymity of urban life. The courts became safety valves, taking on mediating functions that could no longer be provided by social institutions and conventions that had characterized the United States before the Civil War. The vast majority of cases were cut-and-dried. Debt collection was the main theme: grocers, clothing stores, and doctors asked the court to make their debtors pay.

The civil business in other trial courts was as impressive. New Hampshire's county circuit courts had 4400 cases continued (held over to the next year, not settled) in 1876; another 6000 were added the following year. Ohio's courts of first instance in 1873 handed down over 15,000 civil judgments, involving monetary transfers of more than $8.5 million. In December 1903, there were over 5100 cases on the dockets of Kansas City's courts, and about 60 percent of these were liability claims against companies. Under these circumstances, dockets became crowded and delays were the norm. A special committee of the American Bar Association in 1885 studied the problem and found that under then-existing conditions a lawsuit took from one and a half to six years to be decided.

Business grew throughout the rest of the judicial system. By 1900, the work of the nation's appellate courts alone amounted to about twenty-five thousand cases (reported in some four hundred volumes) each year. New York's Court of Appeals, perhaps the most influential final appellate court in the nation, handed down between five hundred and seven hundred decisions a year. The Illinois Supreme Court did about seven hundred to nine hundred a year. The California Supreme Court in 1860 published about one-hundred fifty opinions. In 1890 that number had more than tripled to about five- hundred fifty opinions, but in 1920, thanks to various reforms in court operations and jurisdiction, the court published only about two-hundred fifty opinions.

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The highest appellate courts of the states were not only busy, but, as Table I reveals, they were deeply involved in the economy. From 1870 to 1900 more than one- third (36.2 percent) of the cases decided in these courts dealt with business matters, such as contract, debt, corporations, and partnerships. Another one-fifth (21.4 percent) involved issues of real property. The courts were significant forums for the resolution of business disputes.

Over the next century, the courts decided proportionately fewer business disputes. Litigants simply decided that alternative ways of handling business suits (such as arbitration) were preferable to the courts, which were slow, expensive, and relatively technical, even with a variety of reforms that aimed to simplify pleading and streamline the flow of litigation. In the mature industrial age, "the [state supreme courts] appear to do less work on commercial and industrial transactions, not more." ⁵ In the early years of industrialization the courts participated in economic and commercial regulation, but, as the industrial economy matured, that responsibility gravitated increasingly to the other branches of government, especially independent regulatory and administrative commissions. State supreme courts became more concerned with problems arising out of the confrontation between citizen and state and the collision of human bodies and motor vehicles, which replaced the railroad locomotive as the most important source of accident litigation. As Table I indicates, tort, constitutional, and criminal cases have increasingly filled the dockets of modern state supreme courts.

The leaders of the state bar associations after the Civil War pressed for reforms that would ease the burden of mounting judicial business. Many states increased the number of high court judges. California began in 1850 with three justices, expanded that number to five in 1862, and then expanded it again to seven in 1879. A few states, like California, divided the justices into separate departments, with only the most difficult or important cases decided by the full court. A number of states created special bodies to assist their overburdened tribunals. New York's Commission of Appeals, established in 1870 with a five-year tenure, disposed of about a thousand cases. Nebraska in 1895 set up a State Board of Irrigation with judicial powers: this body handled about a thousand claims that would have otherwise been treated in the regular

TABLE 1. Percentage of State Supreme Court Cases by Law Category, 1870-1970

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courts. Texas in 1891 divided its supreme court into two distinct bodies with separate elected judges: a criminal court of appeals and a civil court of appeals.

Reformers also tried to restrict the flow of cases to the highest courts by creating intermediate courts of appeal and either limiting the jurisdiction of the high court or giving it greater control over the kind of cases that it could hear. In Illinois, for example, the newly created intermediate court of appeals in 1877 became the last stop for contract and damages cases where the amount in controversy was less than $1000. By about 1920 these and other court reforms inspired by the Progressive era had reduced the number of cases reaching the highest appellate courts, allowing their judges to concentrate on what they deemed important cases. But the courts were the products of political decision making, and most reforms were never sufficiently thorough to make a fundamental difference.

Date: 2015-01-29; view: 842