American Law Institute and the Quest for Uniformity and Certainly in Law

The burgeoning corporate economy of the early twentieth century compounded the historical problem of uncertainty in the law. Mid-nineteenth-century legal reformers, most especially David Dudley Field of New York, had won only limited acceptance for codification as a means of ordering the profusion of case law. The federal system had ordained multiple state approaches to common law matters, and the industrialization of the economy expanded the scope and complexity of the case law that spewed forth from a host of tribunals. State legislators added further to the bulging materials on the shelves of law libraries. The West Publishing Company beginning in 1879 had brought a rough, if complicated, order to this Niagara of law, but its National Reporter system only made contradictory precedents more available to both sides in a dispute. What the law was remained uncertain. The National Conference of Commissioners on Uniform State Laws, founded in 1892, convinced some states to adopt several uniform statutes, but these measures barely touched the great bulk of the common law. The American Bar Association, which founded a standing committee in 1888 to create a system of "legal classification," fared little better. The problem did not go away; the volume of law reports increased inexorably. The number of volumes of appellate court cases increased from about thirty-five hundred in 1885 to almost nine thousand by the beginning of World War I, "thus making the sheer bulk of the case law almost overwhelming." ¹

The American Law Institute (ALI), founded in Washington, D.C. in 1923, was the modern response to the complexity and uncertainty of the common law. The founders included the elite of the legal establishment; the New York Times reported that they were "probably the most distinguished gathering of the legal profession in the history of the country."² William Draper Lewis, professor of law at the University of Pennsylvania and an old Progressive ally and personal friend of Theodore Roosevelt, was the driving force behind ALI, although it was also closely associated with the Harvard Law School.

The motives behind the formation of the ALI reflected the mixed sentiments of the Progressive movement, from which it drew inspiration. Some of its conservative members, like Elihu Root, harbored nativist and antiradical sentiments; for them, ALI held forth the promise of increased legal and political stability in a world rocked by war and, in Russia, by communist revolution. At the other end of the political spectrum, Roscoe Pound believed that the new organization would bring social science methods to bear in restoring precision to the administration of justice. In method and substance its work was essentially formalistic and within the tradition of legal science associated with Christopher Columbus Langdell.

The founders agreed on one important matter: the need for greater certainty in the law. One commentator at the founding meeting expressed the sentiments of most delegates with the observation that "the uncertainty, the confusion, [are] growing

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worse from year to year. . . . Whatever authority might be found for one view of the law upon any topic, other authorities could be found for a different view. . . . The law [is] becoming guesswork."³

The principal work of the ALI was issuing restatements of the law. It hired prominent law school faculty, many from Harvard, to rearrange and reorganize the major common law fields (i.e., torts, contracts, property, agency, business corporations, and conflict of laws) and to provide a sparse commentary. The first of the restatements (on contracts) appeared in 1932 under the authorship of Samuel Williston, a Harvard Law School professor in the mold of Langdell. By 1945 the institute had issued eight other restatements.

The restatements marked the culmination of the Langdellian tradition, because they reflected the ALI's belief that through scientific study the principles of the law could be condensed into a powerful logic that would persuade bench and bar of the law's inherent unity. Lawyers began to cite the restatements as legal authority (which they were not and never have been), and appellate judges made increasing reference to them. On balance, however, the ALI's work never achieved the kind of influence that Lewis, Pound, and others had anticipated. Appellate judges simply were not willing to give up their discretion because a Harvard law professor thought they should. Furthermore, while the founders of the ALI had expected that the restatements would not only unify the common law but also connect it to social change, they were eventually forced to lower their sights, making "legal certainty the institute's only objective, a goal underlined by its decision to print the rules in especially bold black letters." ⁴

Legal Realism

The legal realists during the 1920s and 1930s agreed with the ALI's diagnosis that the law was too uncertain, but most of "them disagreed sharply with the remedy advocated by the Institute." ⁵ The realists proposed to place facts, social analysis, and psychological insight into the operation of the judiciary ahead of the ALI's effort to create a "theology" of the common law by restating its fundamental principles. Legal realism stressed the functions of law rather than the abstract conceptualization of it, to which Langdell had been wedded. It also acknowledged that human idiosyncrasies and will often framed legal conduct, but without resort to social scientific methods, the law could not be understood and proper social policy could not be framed.

The roots of realism stretched back to Oliver Wendell Holmes, Jr., and the sociological jurisprudence of Roscoe Pound. As an intellectual movement, "legal realism was a fairly unoriginal contribution." ⁶ The realists adopted Holmes's skepticism about the nature of law and his cynical view of the role of human will in judicial decisions.

New currents of intellectual development and the changed face of Progressivism in the 1920s pushed legal realism beyond Holmes. Much of the Progressive accomplishment (e.g., social welfare legislation, administrative regulation) continued and even expanded in the 1920s. The great slaughter on the battlefields of World War I, however, undermined Progressive faith in human perfectibility and standards of morality. Progressives came "to question the inviolability of their own moral principles." ⁷ At the same time, the behavioral sciences, especially psychology and anthropology,

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stressed the unique and often irrational quality of human behavior. This insight tended to undermine the existence of overarching moral and religious beliefs, a development that proponents of sociological jurisprudence rejected but legal realists accepted.

The case of Benjamin N. Cardozo is instructive. Cardozo was judge of the New York Court of Appeals from 1917 to 1932, at which time President Herbert Hoover elevated him to the Supreme Court, where he served until 1938. Cardozo was the most respected state appellate judge of the twentieth century and one of the nation's most influential commentators on judicial behavior. However, he was not a realist, although, in the mold of sociological jurisprudence, he was critical of the prevailing belief that judging was merely a mechanical exercise.

Cardozo in 1920 delivered the Storrs Lectures at Yale Law School, which were published the following year as The Nature of the Judicial Process, the most perceptive book written about judging in this century. Cardozo confessed that judges were more than simple machines; they often made law rather than simply declared it. "I have grown to see that the [judicial] process in its highest reaches is not discovery, but creation; and that the doubts and misgivings, the hopes and fears, are part of the travail of [the judicial] mind . . . in which principles that have served their day expire, and new principles are born."⁸ Yet Cardozo remained convinced, as the realists were not, that justice demanded respect for precedent. Otherwise, he believed, litigants would lose faith in the courts.

The legal realists sought to move beyond Cardozo's commonsense psychological understanding of judging toward a behavioral approach to law. The popularity of the behavioral sciences soared during the 1920s, and the faculties of the Yale and Columbia Law Schools, which were the hotbeds of the realist movement, turned to them in an effort to lead American jurisprudence away from the strictures of formalism and beyond the limits of sociological jurisprudence.

Karl Llewellyn and Jerome Frank were the most outstanding of the realists. The former served on the law faculties of both Yale and Columbia, while the latter, who became an administrator in the New Deal and a judge on the U.S. Court of Appeals, was a research associate on the Yale faculty. In 1930 Llewellyn published "A Realist Jurisprudence--The Next Step," in the Columbia Law Review, and the same year Frank brought to press Law and the Modern Mind, the most important book written about American law from the realist perspective. Like Llewellyn, Frank stressed the impermanence, flexibility, artificiality, and uncertainty of legal rules and principles. Frank went even further, because he gave particular stress to judicial psychoanalysis, arguing that the "law may vary with the personality of the judge who happens to pass upon any given case."⁹ Realists like Frank rejected formalistic and deductive logic, which, they argued, merely concealed a judge's prejudices and preferences. The realists indeed believed in general legal principles, but they insisted that the traditional deference accorded to precedent was merely a screen that shielded the inherently conservative biases of most judges.

During the 1930s, Pound and the realists exchanged barbed criticism. The most serious differences involved the worth of legal rules and the place of moral values in the law. In 1931, Pound and Llewellyn traded charges in the Harvard Law Review. In "The Call for a Realist Jurisprudence," Pound claimed that Llewellyn and Frank had failed to bring a "theory of values" into a "program of relativist-realist jurisprudence." ¹⁰ Llewellyn, with Frank's assistance, responded that society was always in

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flux and that the law was always racing to catch up. Under these circumstances no single theory of moral values was ever adequate.

Pound and the realists never settled their differences, and historians disagree about the persistence and impact of realism. The commitment to innovative research by the mid-1930s had worn thin, in part because the Depression dried up sources of potential funding for empirical studies, and the New Deal agencies absorbed the talents of many of the realists' strongest voices, such as Frank. Llewellyn in the 1940s joined the formalists in the ALI to become the chief intellectual parent of the Uniform Commercial Code, which summed up all of the statute laws of commerce. The rise of Nazi Germany and the advent of World War II further undermined the realists, because their approach to moral and ethical values seemed to deny the legitimacy of a consistent rule of law.

The traditional Langdellian approach itself was undergoing change from within at its most influential center, Harvard Law School; moreover, Felix Frankfurter and several other faculty members, while eschewing Frank and Llewellyn, had worked some of the insights of sociological jurisprudence into their teaching, even though they clung to the casebook method. Frankfurter, for example, who taught one of the first courses in administrative law, was impatient with the realists because they "think they are adding something to current legal thinking when Holmes said it all two generations ago, and said it much better." ¹¹

Despite their shortcomings, the realists played a significant role in forging an alliance between "legal theory and empirical analysis . . . that had begun forty years before and that was to become a commonly accepted part of American law in the years after the Second World War." ¹² Legal realism was not at all a direct consequence of the Great Depression, but it did capture symbolically the repudiation of stock assumptions about the prevailing culture on which jurisprudential ideas rested: prosperity was transitory, the capitalist system was not omnipotent, and men were quite capable of incompetently managing the economic order. The New Deal, while not directly connected to the realist movement, nonetheless displayed in action the kind of pragmatic and instrumental approach to law with which the realists were identified. Yet a massive generational gap existed between lawyers and politicians of the New Deal and federal and state judges, many of whom by political disposition and training looked to sustain the very values that were slipping away.

The New Deal

The Great Depression was as much a legal as an economic crisis. It raised in sharp relief two enduring historical problems. The first was the proper relationship between law and politics. The public interest in economic recovery and alleviating human suffering had to be balanced against the traditional protection of individual property rights and the separation of powers among the three branches of government. The second was the degree of government intervention in the economic and social order. The critical question before lawmakers in the 1930s was not whether they should intervene but the method of their intervention.

During the 1920s, the direct role of the federal government in the economy declined. Yet the Progressive ideal of an efficient and orderly economy based on

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planning persisted in the government-sponsored trade association movement. These associations were voluntary organizations of business competitors who joined together to share information. Herbert Hoover, first as secretary of commerce and then as president from 1929 to 1933, gave vigorous support to the movement, drawing on the resources of the Department of Commerce to sponsor trade conferences and publish statistics for each of the major industrial and agricultural groups. The trade associations were also an important source of business for the corporate bar, because the cooperative agreements among business in the same industry had to be carefully worded in order to pass scrutiny under existing antitrust laws. The Republican-controlled Federal Trade Commission and the Department of Justice relaxed antitrust enforcement as a further means of stimulating the trade associations. During the 1920s, the Supreme Court was generally supportive of the trade association movement, although it refused to accept association agreements that created "legal obligations on individuals or groups who might not be fairly represented by the agreement." ¹³

The New Deal, therefore, was hardly unique in its instrumental approach to lawmaking. However, the New Dealers foresaw a far more active and direct role for government than had the Progressives. The Roosevelt administration assumed that the federal government was responsible for virtually every important phase of the national economy, and it took the traditional concept of distributive justice and turned it into a positive duty. Government was responsible for promoting the individual well-being of each citizen. The emergency actions of the New Deal era subsequently became permanent changes in the relationship of the federal government to the states and to individual citizens.

Date: 2015-01-29; view: 498