Legal Scholarship

• lawyers and judges
• what shall be done with the practice of the courts?
• contracts
• the path of the law
• brief for the defendant in error, muller v. oregon
• mechanical jurisprudence
• the causes of popular dissatisfaction with the administration of justice
• some reflections on the reading of statutes

Since the nineteenth century, the role of lawyers and the nature of law in U.S. society have been the subject of ongoing debate and scrutiny. Legal scholars and practitioners have discussed whether the law is a self-contained body of rules, displaying logic and reason. Some have embraced this view and have aspired to make law a science. Since the early twentieth century, however, other important legal figures have expressed skepticism about the inner logic of the law, preferring to see legal rulings as responses to immediate social, political, and economic pressures. These skeptics eventually became known as legal realists, a school of thought that can be traced to the scholar and jurist Oliver Wendell Holmes Jr.

The French writer Alexis de Tocqueville visited the United States in the 1830s and wrote about his travels in Democracy in America (1835), one of the classic works of social analysis. Tocqueville, a nobleman, was struck by the democratic character of U.S. society and devoted a section of his work to the role of lawyers and judges. He concluded that lawyers were vital to the preservation of civil order and democracy.

Lawyers have also been the target of popular criticism. In the late eighteenth and early nineteenth century, U.S. critics contended that lawyers and judges conspired to make the law a mysterious body of arcane language and procedures that needlessly complicated problems. Robert Rantoul Jr., a Massachusetts attorney and member of Congress, was a prominent spokesman for the codification movement, which attacked the common law as unsuitable for a democratic republic. In a famous 1836 oration, Rantoul charged that "judge-made law is ex post facto law, and therefore unjust." People could not know the law because "no one knows what the law is before [the judge] lays it down." Moreover, a judge was able to rule differently from case to case.

For Rantoul and others, the only solution was to abandon the common-law system and codify all laws into one book that everyone could read and understand. The codification movement had limited success during the nineteenth century. Rantoul advocated a code but never tried to write one. David Dudley Field, a New York attorney, wrote what became known as the Field Code of civil procedure. His code was enacted in twenty-four states, most of them in the West.

The education and training of lawyers began to change in the nineteenth century. Traditionally, the most popular method of becoming a lawyer had been "reading the law" in a law office, learning legal rules and procedures under the tutelage of a practicing attorney. As the century progressed, however, more law schools were opened. The law school curriculum consisted of attending lectures, reading legal treatises, and memorizing legal rules and concepts. Christopher Columbus Langdell changed the course of U.S. legal education when he published his contracts casebook in 1871. Langdell, a professor and dean of Harvard Law School, introduced the case method, which required students to read judicial opinions and analyze the key points of each case. The Socratic method of logical inquiry was an integral part of the program: professors called on students in class, asked them to present their analysis, and challenged their presentation.

Langdell also embraced the nineteenth century's belief in progress and in the superiority of scientific inquiry. Langdell's conclusion that the law could be a science became a tenet of legal scholarship, but he was eventually challenged by Oliver Wendell Holmes Jr. Holmes, a professor and scholar before serving on the Supreme Judicial Court of Massachusetts and the U.S. Supreme Court, rejected the assumption that law was a science or a logical system.

Holmes wrote a set of legal essays that was published in 1881 as The Common Law. In this volume, which is the most renowned work of legal philosophy in U.S. history, Holmes systematically analyzed, classified, and explained various aspects of U.S. common law, ranging from torts to contracts to crime and punishment. He concluded that:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions 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 the syllogism in determining the rules by which men should be governed.

By the beginning of the twentieth century, the United States had become an industrialized, urban nation. Some lawyers and legal scholars attempted to inject new ideas and information into the law in hopes of overturning stubbornly held doctrines and restoring public confidence in a legal system that appeared to be unprepared to face the realities of the new century. Famed lawyer and later Supreme Court justice Louis D. Brandeis revolutionized the law by submitting what has come to be known as the "Brandeis brief" in Muller v. Oregon, 208 U.S. 412, 28 S. Ct. 324, 52 L. Ed. 551 (1908). The brief contained sociological information on the health and wellbeing of women that Brandeis believed was relevant to deciding whether an Oregon law limiting work hours for women was constitutional. The U.S. Supreme Court upheld the law, lending credibility to Brandeis's use of nonlegal information.

Roscoe Pound, a scholar, teacher, reformer, and dean of Harvard Law School, worked to link law and society through his sociological jurisprudence and to improve the administration of the judicial system. His 1906 speech, "The Causes of Popular Dissatisfaction with the Administration of Justice," was a call to improve court administration and a preview of his theory of law. In 1908 he published "Mechanical Jurisprudence," attacking the notion that an unchanging and inflexible natural law formed the basis for the common law.

The twentieth century also saw the growth of law through legislation. As state legislatures and the U.S. Congress enacted more statutes containing complex and often unclear provisions, the courts were called upon to interpret these laws by using various rules of statutory construction to determine legislative purpose. In 1947, Harvard law professor and later Supreme Court justice Felix Frankfurter delivered a lecture entitled "Some Reflections on the Reading of Statutes," which expounds on the effect that legislative law has on the courts. Fifty years later, the torrent of legislation remains unabated.