Adaptive Jurisprudence: Some Dimensions of Early Twentieth-Century American Legal Culture

Aduptive Jzlyi.y%vdence: Some Dimensions of Emdy Twentieth-

Centzlry Americun Legdl CzlltZlre BY

JOHN W. JOHNSON”

N 1958 Daniel Boorstin made the observation that “of all the basic institutions of our society, our laws are probably. . . least studied as if they were a part of the main stream of our history.” 1 Despite the hyperbole, Boorstin’s excoriating

comment on the state of American legal history went unchallenged by specialists in the field. In fact, his sentiments were echoed throughout the 1960s by some of the most respected American legal and constitutional authorities.” I n 1970 Lawrence Friedman, having been asked to assess the status of American legal history as a field for Herbert Bass’s The State of American Histoiy, made this comment:

When too many manifestos about research are published and when people write about doing rather than attending to the doing, it is a sure sign that a field of knowlcdge is immature. American legal history is in something of this stale. In print, and in speech, American legal historians complain about their field. 3 (Friedman’s italics.)

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If the 1960s was a decade of complaint and challenge in Ameri- can legal history, the current decade has evidenced a different spirit. I n the first half of the 1970s, partially as a result of the urgings of the previous decade, the pace of legal history seemed to accelerate, and the substantive contributions to the under-

*The author is Assistant Professor of History at Clemson University. He wishes to acknowledge assistance from the National Endowment of the Humanities and the 1975 NEH Summer Seminar directed by Professor C. Herman Pritchett of the Political Science Department, University of California, Santa Barbara.

1Daniel J. Boorstin, T h e Mysterious Science of the Law (Boston, 1958), v. * J. Willard Hurst, “The Law in United States History,” Proceedings of the

American Philosophical Society 104 (October 1960): 518-26; Paul L. Murphy, “Time to Reclaim: The Current Challenge of American Constitutional History,” American Historical Review 69 (October 1963): 61-79; and Lawrence M. Friedman, “Some Problems and Possibilities of American Legal History,” in T h e State of American History, ed. Herbert J. Bass (Chicago, 1970), 3-21.

8 Friedman, “American Legal History,” 3.

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Adaptive Jurisprudence standing of the placc of law in American society grew with the new interest in the field.4

T h e quality of several recent offerings on twentieth-centnry American legal history has been especially outstanding. Notc- worthy in this context are the comprehensive biographies of leading twentieth-century legal figures by William Twining, Mel- vin [Jrofsky, and David Wigdor; the scathing indictment of elite American lawyers by Jerold Auerbach; Robert Stevens’s synoptic treatment of the history of American legal education; G. Edward White’s several articles on twentieth-century jurisprudence; and the very stimulating examinations of selected constitutional issues by Richard Kluger, Leonard Levy, Paul Nlurphy, and Clement Vose.O Nevertheless, in spite of the recent bonanza of specialized writing on twentieth-century American legal history, there has been a striking absence of synthesis; that is, legal historians have avoided, for the most part, taking on the task of knitting together the disparate threads of the American legal

* In 1971, the interdisciplinary journal, Perspectives in American Histo.ry, devoted its entire yearly issue to the subject of American legai history; the appearance of this volume-as Friedman has pointed out-sounded a particular note of en- couragement to the field because most of the ten essayists were either quite young in years or had only recently developed interests i n legal history. Subsequently, volume 5 of Perspectives in American Hislory was published in book form: Donald Fleming and Bernard Bailyn, eds., Law in American History (Boston, 1972). See Friedman, review of Law I n American History, ed. Fleming and Bailyn, in American Journal of Legal History 27 (October 1973): 365-69.

William Twining, Karl Llcwellyn and the Realist Movement (London, 1973); Melvin I. Urofsky, A Mind of One Piece: Brundeis and American Reform (New York, 1971); and David Wigdor, Roscoe Pound: Philosopher of Law (Westport, Ct.,

Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York, 1976).

‘ Kobert Stevens, “Two Cheers for 1870: The American Law School,” Perspec- tives i , , -4merican History 5 (1971): 405-548.

See esp. G. Edward White, “The Rise and Fall of Justice Holmes,” University of Chicago Law Review 39 (Fall 1971): 51-77; “From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth-Century America,” Virginia Law Review 58 (September 1972): 999- 1028; “The Evolution of Reasoned Elaboration: Jurisprudential Criticism and Social Change,” Virginia Law Review 59 (February 1973): 279-302; “Allocating Power Between Agenices and Courts: The Legacy of Justice Brandeis,” Duke Law Journal (April 1974), 195-244; and “John Marshall Harlan I: The Precursor,” American Journal of Legal History 19 (January

O Richard Kluger, Simple Justice: T h e Histoiy of Brown v. Board of Education & Black America’s Struggle for Eqitality (New York, 197G); Leonard Levy, Against the Law: ?’he Nixon Court & Criminal Justice (New York, 1974); Paul L. Murphy, T h e Meaning of Freedom of Speech (Westport, Ct., 1972); and Clement Vase, Constitutional Change: Amendment Politics and Supreme Court Litigation Since 1900 (Lexington, Mass., 1972).

1974).

1975): 1-21.

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The Historian experience in the twentieth century. For example, even Law- rence Friedman, in his long-awaited and praiseworthy general text, A History of American L n ~ u , ~ ” treated the post-1900 period only in a 29-page epilogue.ll In fact, the only general American legal history to pay a significant amount of attention to the twentieth century is Bernard Schwartz‘s The Lazu in America: A History. l2

However, despite some valuable observations on American legal culture in the modern period, Schwartz’s treatment of the twentieth century is more synoptic than synthetic; it provides coverage but does not provide an explanatory framework for the dimensions of legal culture discussed. l3

Judging from the comments of legal historians themselves, there appear to be three principal reasons why scholars have been unwilling to undertake thoroughgoing synthetic studies of twentieth-century American legal culture. Lawrence Friedman-in the process of exculpating himself for his sketchy treatment of the twentieth century in his History of American Law-noted two of them: (1) that the period is extraordinarily complex and (2) that its relative recentness denies historians adequate temporal per- spective, making scholarly attempts a t unification somewhat fu- t i l e . ~ ~ ~ The third plausible explanation for the absence of synthetic legal studies of the period (perhaps a corollary of the second) is provided by G. Edward White, who has himself written several very thoughtful articles on specific aspects of twentieth-century

lo (New York, 1973). Friedman, A History of American Law, 567-95. See William E. Nelson, review

of A History of American Law, by Lawrence M. Friedman, in American Journal 01 Legal History 18 (April 1974): 182-85.

(New York, 1974). yJ T h e very titles of Schwartz’s four chapters on twentieth-century American

law-“Welfare State: Public Law,” “Welfare State: Private Law arid Institutions,” “Contemporary Law: Public Law,” and “Contemporary Law: Private Law and Institutions”-indicate that the treatment of the period is not devised according to any unique intcrpretative scheme. Similarly, as Morton Horwitz has pointed out, Schwartz’s volume suffers from being too narrowly legalistic and, consequently, avoids relating legal changes to more general social concerns. See Morton J. Horwitz, “The Conservative Tradition in the Writing of American Legal History,” American Journal of Legal History 17 (1973): 275-91. A similar criticism of American legal historiography is offered by Robert Gordon in his comprehensive article, “Introduc- tion: J. Willard Hurst and the Common Law Tradition in American Legal Historiography,” Law and Society Review 10 (1975): 9-55. Specifically, Gordon refers to the limited payoffs which result from recording the “internal” history of American law. Furthermore, Gordon’s attempt to synthesize and organize the historiography on American legal subjects provides a model for the type of substantive synthesis and organization of the twentieth-century American legal experience offered here.

Friedman, American Law, 567.

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Adaptive Jurisprudence American In an essay on the teaching of legal history published in 1971, White contended that the American legal experience since 1910 is “less graphically ‘historical’ ” than that of the period between the American Revolution and the First World War. I B By this he meant that American approaches to legal problems in the 1970s are not that different from the approaches of, for example, 1920. Thus, in White’s view, examination of the period since I9 10-tie terms this the “modern period”-should move forward more on analytical than on historical terms. White maintained that the American legal experience in the twentieth century is better examined as a part of a contemporary study oE legal issues and problems than as an inquiry into the historical process of change and accommodation. l7

Even though there is merit in these views, synthetic studies of the intersection of law and society in the twentieth-century United States should not be de.emphasized or put on the back burner. It is, of course, impossible to present a large-scale synthesis in an article of this nature: what is intended instead is to posit a unifying principle for the potential study of early twentieth-century American legal culture and, in the process, to sketch briefly some of its dimensions.

T h e principle advanced here is that of “adaptation.” Adap- tation to externalities was the dominant theme of American legal thought and legal behavior in the period 1908-40. It was during these years that American jurisprudence was more informed by external influences-by interest groups, by reformers, by nonlegal disciplines, by stirrings of change among legal educators, by whole new categories of previously unrecognized proof and analysis, and by general intellectual concerns-than in any other era of America’s legal past. These external influences on twentieth- century American law, together with the judicial accommodation to them, constitute what shall be termed “Adaptive Juris- prudence.” l8 T h e Adaptive Jurisprudence of the early twentieth

=See supra, note 8. laWhite, “Some Observations on R Course in Legal History,” Journal of Legal

Education 23 (1971): 440-51, at 448. I’ See also White, “Some Problems in an Interdisciplinary Approach to Legal

History,” Journal of Interdjsciplinary Wistoyy 1 (Spring 1971): 491409. Since the publicalion of his two pedagogical articles in 1971, it is apparent that White has become somewhat more reconciled to the need for an historical as well as an analytical approach to twentieth-century American legal issues. His several substantive articles published in the Iast four years all bear heavily on the historical dimension of post-1900 American law. White’s The American Judicial Tradition: Profiles of Leading Ameiicnn ,ludges (Xew York, 1976) appeared too late to be con- sulted for this essay.

One likely objection to the model of adaptation suggested here as a unifying

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The Historian century had three major components: (1) the development of several “new sources” of the law; (2) the fashioning and practical application of certain highly effective techniques in the art of legal argumentation; and (3) a diffuse but remarkably influential set of attitudes held by a vocal segment of the American legal profession. In the present context, the first two dimensions will be discussed onIy briefIy, while proportionately greater attention will be paid to the third.

“New Sozirces” of the Law and Innovative Legal Teclzniques The first third of the twentieth century was an iinusually fruit-

ful period for the development and compilation of legal research tools. Some of the most profound legal treatises, including John

principle for American legal history in the early twentieth century is that adaptation is a quality possessed by jurisprudence in all periods and that, consequently, it is not very useful for legal historians to characterize one period’s jurisprudence as more adaptive than that of another. Lawrence Friedman, in a review of Perry Miller’s long essay, “The Legal Mentality,” in The Life of the Mind in America: From Reuolutton lo the Civil War, by Perry Miller (New York, 1965), 99-265, stated this position succinctly: “A legal system must respond to the needs of its time and its society. When one speaks of a legal system as out of tune with its society, one is usually referring to quite a different phenomenon: a conflict between parts of society or specific interest groups in which the legal system, or some specialized institution, responds to or reflects some interests but not others.’’ (Friedman’s italics.) See Friedman, “Heart Against Head: Perry Miller and the Legal Mind,” Yale La7u Journal 77 (May 1968): 1244-59, at 1255. Oliver Wendell Holmes said essentially the same thing in his often-quoted introductory paragraph in The Common Law (Boston, 1881), 1: “The life of the law has not been logic; its 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 Lheir fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” Friedman and Holmes are, of course, fundamentally correct. Legal systems are never “out of tune” with society; i t is almost axiomatic that law and society will always intersect at scvcral points and that legal culture will mirror society in some respects. But, in contrast to these statements of Friedman and Holmes, it must be said that law does not always respond to social interests. There are times in a nation’s past when the lines of historical force run the op- posite direction. In American history there have been certain periods in which law has been more generative of social change than responsive to social forces. T h e so-called “Golden Age” of American law, extending from about the onset of John Marshall’s Chief Justiceship in 1801 to the U.S. Supreme Court’s ill-starred Dred Scott decision, 19 Howard 393 (1857), was such a period. See esp. on this era Charles Harr, ed., The Golden Age of American Law (New York, 1965). The Creative Jurisprudence of the early nineteenth century is discussed as a counter- poise to the Adaptive Jurisprudence of the early twentieth century in John W. Johnson, “Creativity and Adaptation: A Reassessment of American Jurisprudence, 1801-1857 and 1908-1940,” Rutgers-Camden Law Journal 7 (Summer 1976): 625-47. Cf. Robert Gordon, “A Comment on . , , ‘Creativity and Adaptation,’” ibid.: 648-56.

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Adaptive Jurisprudence Wigmore’s multivolume work on evidence, l9 were written in these years. The World War I period, in particular, witnessed the birth of several important publications: the first important American legal encyclopedia, Corpus Jzwis, came out in 1913; 2o

the American Law Reports, the most scholarly series of annotated reports appeared in its first series in 1919; 2 1 and the most impressive attempt to provide a systematic statement of American common law, the American Law Institute’s Restatement, was con- ceived in 1914 at a meeting of the American Association of Law Schools. 22

A discussion of the prepublication background of each of these authorities might prove interesting, but it would be outside the province of this essay. It should be said, however, that the appearance of these important research tools at about the same point in time was no accident. As Robert Wiebe has demonstrated splendidly in his general treatment of the period,n3 the first two decades of the twentieth century were notable for the stepped-up organization and realignment of America’s major professions. Lawyers were very much a part of this movement toward greater professional coherence and respectability. I t is within this context that the development of such a variety of legal research tools can be properly understood. Besides attempting to bring more exact- ing standards to legal education and more stringent controls on admission to the bar,24 attorneys and law professors sought to

10 John H. Wigmore, Evidence, 3rd ed. (Boston, 1961). The none-too-humble maxim of the original publishers of Corpus Juris

states, “If it is in the reported cases, i t is in Corpus ,lurk; if it is not in Corpus Juris, it is not in the reported cases.” Corpus Juris Secundum (Brooklyn, 1936), 1: v.

“For a discussion of the nature and use of the American Law Reports, see Ervin H. Pollack, PundamentaL of Legal Research, 3rd ed. (Brooklyn, 1967), 110-17.

E n o n the genesis of the American Law Institute and the Restatement, see William D. Lewis, “History of the American Law Institute and the First Restate- ment of the Law: How We Did It,” in Restatement in the Courts, ed. American Law Institute (St. Paul, 1945), 1-23.

S3See Robert H. Wiebe, The Search for Order, 1877-1920 (New York, 1967), esp. 111-32.

“See Stevens, “Two Cheers for 1870,” esp. 453-64; and Auerbach, “Enmity and Amity: Law Teachers and Practitioners, 1900-1922,’’ Perspectives in American History 5 (1971): 551-601. Auerbach notes that some of the motives of the Ameri- can Bar Association and the American Association of Law Schools for “upgrading the profession” were not the most praiseivoi thy. For instance, making admission to good law schools and the state bars subject to stringent and arbitrary require- ments helped to assure that blacks and recent immigrants would have little influence over the law. Auerbach has expauded on these and other themes in his impressive new book, Unequal Justice: Lawyers and Social Change in Modern America. Auerbach’s analysis is consistent with that of other recent historians who have been intent on disclosing the seamy side of Progressivism. In this connection, see William Preston, Jr., Aliens and Dissenters: Federal Suppression of Radicals, 1903-1933 (New York, 1963); Gabriel Kolko, The Triumph of Conseruahm: A

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The Historian bring some order to legal doctrine by the fashioning of encyclopedias, annotated reports, and the code-like Restatement. Ironi- cally, these compilations were only intended by their editors as tools to assist lawyers and judges in locating relevant case precedents. Yet, by the late 19209, it was apparent that these research aids were being cited in legal briefs and appellate court opinions as authorities in their own right. 25 Iinowledge of the common law was, it seemed, no longer sufficient in and of itself for satisfactory judicial decision making.

T o augment and reinforce the “new sources” of the law developed in the World War I years, a variety of imaginative legal strategies were inlroduced at about the same time that proved to be instrumental in molding Adaptive Jurisprudence. The “Bran- deis Brief” was, of course, the most important of these strategies. The original Brandeis Rrief, submitted in 1908 in Mziller v. Ore-

in support of a state maximum-hours law applying to indus- tries and laundries employing women, alluded to a broad range of published sources, including medical reports, psychological treatises, reports of factory inspectors, extracts of reports from govern- ment bureaus of statistics, and reports from diverse legislative bodies. 27 The Brandeis-Goldmark document provided a model for other attorneys who, throughout the early twentieth century, were desirous of bringing extensive extraiegal materials to the attention of appellate courts. 28

Besides serving as a vehicle for bringing extralegal materials to the attention of appellate courts in the early twentieth century, - Reinterpretation of American History, 1900-1916 (Chicago, 1963); Samuel Haber, Efficiency and Uplift: Scientific Management in the Progressive Era (Chicago, 1964); Roy Lubove, The Progressives and the Slums (Cambridge, 1962); and William A. Williams, T h e Tragedy of American Diplomacy (New York, 1962).

=Writing in 1928, in the maiden volume of the Southern California Law Review, Max Radin, one of the most vocal critics of the heavy hand of tradition in American law, commented upon the wide range of sources that appellate judges were then citing in their written opinions: “There are scarcely 10 pages of the Reporter [volume 158 of the Northeastern Reporter] in which some treatises do not appear and certainly not 10 in which there is no reference LO one of the many existing cyclopedias, repertories, handbooks, or digests, or dictionaries.” Max Radin, “Sources of Law-New and Old,” Southern California Law Review 1 (1928): 412-13.

208 U.S. 412 (1908). =Louis Brandeis and Josephine Goldmark, Women in Industry . , . Brief for

the State of Oregon (New York, 1908). *8 The historical and political science literature on Brandeis Briefs is extensive.

Particularly insightful discussions can be found in Vose, Constitutional Change, 163-239; Paul L. Rosen, The Supreme Court and Socinl Science (Urbana, 1972), 67-229: and Alpheus T. Mason, Brandeis, A Free Man’s Life (New York, 1956), passim.

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Adaptive Jurisprudence the Brandeis Brief also provided an important means for articu- lating the views of powerful interest groups such as the National Consumers’ League. Within the period 1908-36, the League sponsored fifteen appeals to the U.S. Supreme Court; its position was sustained in all but three instances. 29 Not only did the League assist in compiling the extralegal data included in the appellate briefs, but it also helped both to frame the litigious strategy of the attorneys it retained and to publicize the case for maximum-hours and minimum-wage legislation among the intellectual and legal communities. 3o Clement Vose has referred to appeals funded, organized, or in some significant way assisted by interest groups such as the National Consumers’ League as “managed litigation.” Such managed appeals were instrumental in making American courts responsive to the political and social views of organized reformers. Understood in this light, managed litigation can be seen as another important legal technique of Adaptive Jurisprudence.

A final innovative strategy of the first third of the twentieth century can be termed the “Brandeis Opinion.”32 Just as the appellate brief drat ted by Brandeis for the Mz1,11e~ case made copi- ous reference to extralegal authorities, so did many of Brandeis’s opinions after his appointment to the Supreme Court. Brandeis was, in fact, the first Supreme Court justice to cite substantial

National Consumers’ League, Thirty-Five Years of Crusading, 1899-1935 (New York, 1935), 10. The three cases in which the League’s Brandeis Briefs proved to be of no apparent assistance were all distinguished by particularly strained economic rationales on the part of the Supreme Court’s majority: Adkins v. Children’s Hospital, 261 US. 525 (1923); Schechter Cor+oration v. U.S., 295 US. 495 (1935); and illorehead v. New York ex ref . Tipaldo, 298 U.S. 587 (1936).

80For instance, in 1912, the League published a 900-page volume titled Fatigue and Efftciency (New York, 1912), edited by Josephine Goldmark, Chairman of the League’s Committee on Legislation, which made available to the public much of the data on the adverse effects of excessivc hours of labor that had appeared in its earlier Biandeis Briefs. And, in 1917, the League distributed without charge to 462 educational institutions and 717 individuals copies of the brief written by Felix Frankfurter and Josephine Goldmark for the appeal in Bunting v. Oregon, 243 U.S. 426 (1917). See Vose, “The National Consumers’ League and the Brandeis Brief,” Midwest Journal of Political Science 1 (November 1962): 288.

s1 See Vose, “National Consumers’ League,” 267-90; “Litigation as a Form of Pressure Group Activity,” T h e Annals of the American Academy of Social and Political Sciences 319 (1958): 20-31; Caucasians Only: T h e Supreme Court; the NAACP; and the Restrictive Covenant Cases (Berkcley 1959); and, esp., Consti- tutional Change, 163-230 et passim.

s2This term was coined by Chester A. Newland. See his article, “Innovation in Judicial Technique: The Brandeis Opinion,” Southwestern Social Science Quarter- Zy 42 (1961): 22-34.

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The Historian amounts of extralegal materials in his written opinions. 33 For instance, in 1917, dissenting in Adunzs v. Tanmu, Rrandeis chided the Court’s majority lor its unwillingness to look at the real social reasons for the passage of a Washington lam prohibiting employ- ment agencies in that state. In the opinion, Brandeis drew upon a range of source material reminiscent of his brief in Muller: reports of the Washington Bureau of Labor, the U.S. Bureau of Labor Bulletin, Congressional hearings, the Political Science Qziurterly, several texts on labor law, the Anrerican Labor Legis- lation Review, and Survey magazine.34 Although his use of extralegal authorities in many opinions seemed a bit excessive to some of the most profound legal thinkers of the period,35 Bran- deis continued to rely heavily on extralegal sources throughout his tenure on the Court. In particular, he was very disposed toward citing articles in law reviews. 36 Moreover, Brandeis persistently urged, especially in his dissenting opinions, that other appellate judges become cognizant of social and legislative facts as revealed by extralegal authorities. 3i In effect, Rrandeis was is- suing a call to his judicial brethren to help fabricate Adaptive Jurisprudence.

Changing Attitudes of the Legal Profession Adaptive Jurisprudence would only have been the dream of a

” f b i d . See also Johnson, “The Dimensions of Non-Legal Evidence in the American Judicial Process: T h e United States Supreme Court’s Use of Extra-Legal Materials in the Twentieth Century” (Ph.D. dissertation, University of Minnesota, 1974), 113-17, 194-207.

Adams v. Tanner, 244 U.S. 590 (1917). n3 Shortly after Brandeis began delivering his factually laden opinions, Harold

Laski wrote to his old friend Oliver Wendell Holmes, staling that both he and Roscoe Pound had agreed that i f Holmes could only “hint to Brandeis that judicial opinions aren’t to be written in the form of a brief it would be a great relief to the world.” Mark DeWolfe Howe, ed., Hoffnes-Laski Letters, 2 vols. (Cambridge, Mass., 1953). 1: 127. Whether Holmes ever made such a suggestion to his friend is not known.

By the time he had retired from the Court, Brandeis had authored forty-seven opinions in which he alluded to law review authority. Newland, “Judicial Tech- nique,” 25. See also Newland, “Legal Periodicals and the United States Supreme Court,” Midwest J o z m a l of Politicnl Science 3 (1959): 58-74.

3’See, for instance, Brandeis’ statement in Jay Burns Baking Co. v. Bryan, 2Gl U.S. 504, 520 (1924): “Unless we know the facts on which legislators may have acted we cannot properly decide whether they were . . . unreasonable, arbitrary. or capricious. Kriowledge is essential to understanding; and understanding should precede judging. Sometimes, if we would guidc by the lizht of reason, we must let our minds be bold.” Brandeis, apparently, had a want for repeating himself. The phrase, “if we would guide by the light of reason, we must let our minds be bold,” was repeated word for word in the peroration of his more famous dissent, h’ew State Ice Co. v . Liebmnnn , 285 U.S. 262, 311 (1932). See also Brandeis’ dissent in Truax v, Corrigan, 257 U.S. 312, 356 (1921).

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Adaptive Jurisprudence few lawyers and social reformers had not appellate judges and law school professors been willing to alter their traditional alle- giailce to the common law. Convincing these two groups of the need to look beyond the aging pages of the court reports in a search for additional insight and inspiration proved to be the essential stage in the accession of the new mood in American law. Between 1908, when Justice Brewer, speaking for the majority in Mutler v. Oregon, announced that the materials cited in Bran- deis’s brief “were not, technically speaking, a ~ t h o r i t i e s , ” ~ ~ and the wholesale embrace of such sources by Franklin Roosevelt’s ap- pointees to the Supreme Court in the late 1930s, a dramatic shift in legal attitudes had taken place. What happened to American jurisprudence in the early twentieth century was not only that the heavy mantle of the common law was beginning to fray due to the friction caused by iconoclastic lawyers and social activists, but also that it was beginning to be actively sloughed off by those segments of the legal profession most devoted to the traditional teachings of case law.

For one thing, appellate judges of the early twentieth century began to evidence much more appreciation for statutes and legislative history than had their predecessors. Prior to 1900, it would be fair to say, most Anglo-American jurists and legal writers felt, as Edward Dumbauld so elegantly put it, that “statutes [were] . . . isolated or sporadic encrustations upon the rationally developed body of judge-made common law.”30 This negative attitude toward statutes held by most pre-twentieth-century judges mani- fested itself in the formation of various “canons of statutory interpretation” which tended to minimize the effect of statutory change on the common law. The classic and most frequently cited canon was the dictum “statutes in derogation of the common law will not be extended by construction.”40 This canon and others of a similar antilegislative bite were utilized by appellate judges to avoid the necessity of investigating legislative purpose. If a statute was to be limited in its sweep, it was accepted that judges need not investigate the remedial intentions of the legislators who drafted it. Thus, prior to 1900, “legislative history”-as encap- sulated in committee reports, legislative hearings, or recorded legis-

2s 208 U.S. 412, at 420. Edward Dumbauld, “Legal Records in English and American Courts,” Amer-

ican Archivist 36 (1973): 30. the use of canons of statutory interpretation in appellate courts, see

Carl A. Auerbach et al., T h e Legal Process: A n Introduction to Decision-Making b y Judicial, Legislative, Executive and Administrative Agencies (San Francisco, 1961), 492-501; and Karl Llewellyn, “Remarks on Lhe Theory of Appellate Decision and the Rules or Canons About How Statutes Arc To Be Construed,” Vnnderbilt Law Review 3 (1950): 395-408.

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The Historian lative debates-was seldom referred to by appellate judges.

In the first two decades of the twentieth century, however, judicial distaste for legislative history was put to a severe challenge. Federal, slate, and local statutory enactments increased prodigiously in the Progressive Era. According to J. Willard Hurst, a t some time between 1880 and 1920 statutory legislation became the most dynamic sector of American law.41 In 1925, Felix Frankfurter estimated that most of the cases of the U. S. Supreme Court in that term involved statutory construction or the review of administrative practices, while the proportion of cases strictly involving the common law was less than 10 percent.*2 It is, therefore, not difficult to understand why at least some appellate judges sought illumination of this growing genre of litigation from the testimony of legislators themselves. In addition, the Brandeis Brief not only served as a vehicle for carrying expert medical and scientific testimony to appellate courts, but it also provided a frequently used device for organizing and exhibiting relevant legislative history. In a 1924 Harvtrrd Law Review article, Henry Wolfe BiklC lauded the Brandeis Brief as a valuable means of apprising courts of pertinent “legislative facts,” particularly those buried in committee reports or Congressional debates. 4R

Moreover, it should be emphasized that many appellate judges in the early twentieth century realized the substantial injustice that could be perpetrated by judicial construction of uninterpreted legislation. In 1905, for example, the Supreme Court majority in Lochner v. New York4* all but ignored testimony regarding the basis upon which the New York legislature had enacted its maximum-hours law for state bakeries. But, by 1920, several appellate courts-the U.S. Supreme Court included-were accepting the ad- vice of constitutional scholar Ernst Freund that judicial bodies should not make assumptions about factual situations in the face

Hurst, The Growth o j American Law: The Law Makers (Boston, 1950). 187. ‘:‘‘It is therefore accurate lo say that courts have ceased to be the primary

makers of law in the sense in which they ‘legislated’ the common law. I t is certainly true of the Supreme Court, that almcst every case has a statute at its heart or close to it.” Felix Frankfurter, “Reflections on Reading Statutes,” in An Autobi- ography of thc Supreme Court: 08-lhe-Bench Commentary by the Justices, ed. Alan Westin (New York, 1963), 305-6.

L3 Henry Wolfe Biklb: “Judicial Determination of Questions of Fact Affecting the Constitutional Validity of Legislative Action,” Haruard Law Review 38 (1924): 13. But see Adkins v. Childreti’s Hospital, 261 US. 525, 560 (1923): “A mass of reports, opinions of special observers and students of the subject, and the like has been brought before us in support of this statement [that the hours worked in this industry should be limited by state law], all of which we have found interesting but only mildly persuasive.”

44 198 U.S. 45 (1905).

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Adaptive Jurisprudence of undisputed evidence to the contrary.45

Just as appellate judges of the early twentieth century became more alert to sources of information and insight outside of the coinmot1 law, in the years between the two world wars some of America’s best law professors also began to seek intellectual sus- tenance beyond the bound volumes of cases. In the main, this was a long-overdue reaction to the heavy hand of the “case method” of legal instruction, which had been popularized by Christopher Columbus Langdell of Harvard in the 1870s and transported to other major American law schools in the late nineteenth and early twentieth centuries by Langdell’s pedagogical progeny.4ti T h e best of American legal education prior to World War I emphasized the study of selected appellate cases to all but the total ex- clusion of statutory and social science materials. Beginning, however, with two Carnegie Foundation studies on legal education, Josef Redlich’s T h e Common Law and the Case Method in tlmeri- can Law Schools, published in 1914,47 and Alfred 2. Reed’s Train- ing for the Public Profession of the Law, issued in 1921,4n the case method was placed on the defcnsive. Redlich, while largely praising American legal education, lamented the fact that the study of statutes and legislative materials received short shrift in case method T h e more definitive Reed report echoed this criticism while advancing one of greater consequence: that even the best of America’s law schools had very unsystematic curricula.50 Both reports were widely read and heatedly discussed by legal educator^.^'

One response to the charge of the Reed report that law school curricula were not organized upon any reasonable bases was an attempt of Columbia University’s law faculty in the 1920s to

‘j Ernst Freund, Standards of American Legislation: A n Estimate of Restrictive and Conslrucliue Factors (Chicago, 1917), 99. T h e success of advocates employing Brandeis Briefs between 1908 and 1936 is partial testimony to the willingness of appellate judges to heed Freund’s plea. See supra, note 29.

40 See Stevens, “Two Cheers for 1870,” 465-93, for a brief but thoughtful discussion of the dynamics of American legal education in the 1920s and ’30s.

(New York, 1914). (New York, 1921).

+”Josepll Redlich, T h e Common Law and the Case Method in Americmi Law Schools (Kew York, 1914), 35.

“No feature of American legal education so arouses the astonishment of a layman, or of a foreign student familiar wiih the neat categories of Continental law, as does the absence of ahything like agreement between our various law schools as to how the law is to be ditided and arranged: unless it be the further discovery that no single school has devised its curriculum upon any reasoned plan.” Alfred 2. Reed, Training for the Public Projession of the Law (New York, 1921), 346.

61 See Stevens, “Two Cheers for 1870,” 441-53.

27

The Historian set up “functional” courses-that is, courses designed to probe the way the law actually operated as opposed to the traditional plan of constructing courses around the headings and subheadings o f nineteenth-century legal encyclopedias.52 Most of the resulting courses cut across these time-honored categories of the law, and several utilized legislative materials, historical documents, and the findings of social scientific disciplines.53 Partly because of dis- sension among the faculty, however, the functional curriculum was largely abandoned by 1930.54 As a result, some of the parti- sans of the functional curriculum and the use of extralegal sources in the study of law left Columbia and carried their ideas elsewhere. Herman Oliphant and Hessel Yntema helped to found the Johns Hopkins Institute for the Study of the Law in 1928, and William 0. Douglas and Underhill Moore accepted professorships at the Yale Law School.

T h e Johns Hopkins Institute was desgined to serve as a locus for “the non-professional study of the law”; most of the scholars in residence undertook detailed empirical inquiries into narrow channels of the judicial system. But, in 1933, when the funding for the Institute was terminated, few of the published works of the resident scholars had moved beyond the stage of data-gathering ~ o n i p e n d i a . ~ ~ At Yale, Douglas and Moore joined such other legal iconoclasts as Charles E. Clarke, Robert Hutchins, and Thur- man Arnold and sought to emphasize social science insights in their teaching and research. Also, these Yale professors became vocal critics of conventional legal education. Douglas, for instance, attacked the case method of instruction for its inability to deal with the pressures brought to bear on the law by current social problems, 5(5 while Arnold ridiculed Harvard, the archetypal case method school, as “the high church of abstract legal theory.”sT

raLllie best discussion of the rcforins of Columhia’s Law School in the 1920s is Brainertl Currie’s article, “Non-Legal Materials i n thr Law School: Beginnings of the Modern Integration Movement,” Journal o j Legnl Et lwxtion 8 (1955): 1-78.

See Herman Oliphant. ed., Szct~iniary 01 Studies in L e g a l Ediccatioiz by the Fncitlty of Columbia Uniziersity (Kerv York, 1928), 5 et passim.

See Stevens, “Two Cheers for 1870,” 474-77; and Currie, “Son-Legal Ma- terials in the3 Law SchooI,” 64-76.

“For a discussion of the brief history of ihe Johns Hopkiiis Iiistitute, see Wilfritl E. Rumble, Jr., American Legal IienliAnr: Skepticism, Reform acrid the ,Judicial Process (Ithaca, l!IG8), 15-20. For a bililiography of the studies produced by scholars at the Institute, see Rumble, “The Foundations of American Legal Realism” (PhD. dissertation, Johns Hopkins University, 1962), 73, note 105.

m William 0. Douglas, “Education for the Law,” in Democracy nnd Financt-; The Addresses and Public Statenients of Williant 0. Dotigins as a Member and Chairman of the Securities and Exchange Commission, ed. James Allen (Sew Haven, l940), 285-86.

67 Thurman Arnold, Fair Fights and Foul (New York, 1965), 58.

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Adaptive Jurisprudence In one sense, the attempt of American legal institutions in the

1920s and ‘30s to deal with, as Robert Stevens has put it, “the social sciences and all that” was a failure: the curricular reforms at Columbia were thwarted by a schism of the faculty; the Johns Hopkins Institute was a casualty of the Depression before it had a chance to prove itself; and the reforming cadre at Yale seemed to spend more time in criticizing what was lacking in traditional legal education than in constructing a positive program of its own. But, in a larger sense, the debate in the 1920s and ‘30s over the use of social science authorities in teaching and research was markedly beneficial to American law. The most enduring and constructive consequence of these intellectual exchanges was the stimulus that they gave to the publication of casebooks laced with extralegal materials.

In the 1920s, casebooks began to appear with some frequency with titles such as Cases and Materials in Equity , Materials and Cares on Torts, or simply Materials on Contracts. Various types of materials or strategies for instruction were included in these v0lumes.5~ Explanatory footnotes, textnotes, and case digests commonly accompanied the printing of the usual appellate cases. Some casebooks even posed problem cases or supplemented the reported cases with probing questions. But the greatest innova- tions came in the so-called “revolutionary casebooks,” 59 which attempted to present sundry extralegal materials, mainly from the social sciences, along with appellate caurt opinions. Several casebooks published in the 1930s could be termed revolutionary in their use of extralegal materials. Karl Llewellyn’s Cases and Ma- terials on the Law of Sules6O is usually singled out as the first such multidisciplinary compilation. But, perhaps, the casebook that succeeded in most thoroughly integrating material from law and the social sciences appeared a decade later: Jerome Michael’s and Herbert Wechsler’s Cases and Materials on Criminal Law and Its Administration: Cases, Statutes and Commentaries.61

The Michael and Wechsler volume was organized around cen- tral questions of legal and social policy, not around traditional categories of the criminal law. The book contained a twenty-four-

”On the development of new casehooks in thc 1920s and ‘305, see Albert Ehi-enzweig, “The American Casehook: ‘Cases and Materials’,’’ Georgetown Law fournuZ32 (1944): 224-47.

NJ The term “revolutionary casebook’ is Ehrenzweig’s. Zbid., 231-41.

a (Chicago, 1940). Several other casebooks published in the period are deserving of mention as being particularly innovative: Walter Gellhoni, Coses and Comments 071 Adrn+zistrutiue Law (Chicago, 1940); Philip Thajer, Cases and Materials in the Law Merchant (Cambridge, 1939); and Roscoe Steffen, Cases on Commeicial and lnvestment Paper (Chicago, 1939).

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(Chicago, 1930).

The Historian page table listing the articles, books, and other publications from which selections were reprinted therein. A few examples of some of the sources listed in this table will indicate the variety of extralegal materials encompassed by the text: (1) Catherine 11’s in- structions to the commissioners appointed to frame a new Russian code, (2) an article from the Nation, (3) newspaper accounts of trials and vigilante activities, (4) reports of reforming and in- vestigatory bodies, public and private, ( 5 ) psychoanalytical literature, and (6) excerpts from books and book reviews on criminology. These materials were not just assembled; they were “integrated,” in the best sense of the word, with the obligatory appellate court opinions. Social policy questions provided frames for ordering the variant materials. Moreover, unlike even the best of the other revolutionary casebooks, the Michael and Wechsler volume made substantial use of legislative documents. In a long review article on Cases and Materials on Criminal Law and Its Admin- istration, David Riesman concluded that

their book is proof that the progressive elements in sociological jurisprudence and in legal realism have finally overcome the period of growing pains and can pass free and adult among men. As its pattern becomes a model for the organization of e ually inclusive materials around similarly vital problems

and, consequently, an improvement in t e character and com- petence of the bar.62

h o 7 social control, we may expect a nia’or shift in teaching,

T h e impact of such innovative casebooks on the state of legal education has been pervasive. For instance, Columbia’s Dean Smith noted in 1937 that thirty-six of the forty courses taught in the Law School during the previous ten years used materials prepared by the Columbia faculty. Most of these materials drew in some degree, shape, or form from extralegal (largely social scientific) sources. 63 Today, virtually every casebook used in courses at the major American law schools contains some extralegal materials. Although it is impossible to determine the precise effect that such casebooks have had on the official citation of extralegal materials in legal briefs and court opinions, i t is fair to conclude that the appearance of social scientific materials in the casebooks of the 1930s introduced and suggested to future judges and attorneys the value of relying on similar materials in legal briefs and appellate court opinions.

O?David Riesman, Jr., “Law and Social Scienre: A Report on Michael and Wechsler’s Classbook on Criminal Law and Administration,” Yale Law Journal 50 (1940): 653.

Rs Currie, “Non-Legal Materials in the Law School,” 70.

30

Adaptive Jurisprudence Behind much of the impetus toward Adaptive Jurisprudence

was a diffuse school of thought that has been termed “Legal Realism.” No attempt will be made here to discuss the tenets, personalities, or thrusts of the Realist Movement generally; this subject has received ample, but by no means exhaustive, treatment elsewhere.64 In this context, how the Realist Movement served to advance the cause of Adaptive Jurisprudence will be the principal focus of discussion.

Legal Realism cannot be given a pat definition, nor can one easily list its major proponents or adherents. About all that can be safely said about Realism is that it represented a general out- look rather than a unitary school of thought. At best, Realism was a loose amalgam of heterodDx ideas held by a number of articulate and prolific legal scholars, lawyers, and judges. I t blos- somed in the 1920s and grew to its full flower in the ’3Os.o~

What tied the Realists together in the eyes of the larger legal community was their skepticism regarding traditional legal maxims and legal institutions. The skepticism fostered by the Realists took a myriad of forms. I t ranged from the felicitous language of a Benjamin Cardozo, questioning traditional attitudes

T h e best book-length examinations of the subject are Twining’s Karl Llewel. lyn and the Realist Movernent, esp. 1-83, 375-87; and Rumble’s ,4mericari Legal Realism.

llJ The twisted roots and ambiguous untlerpinuings of the Realist Movement have afforded legal and intellectual historians much opportunity for debate and discussion. T h e standard belief is that the Realist Movement grew out of the “Sociological Jurisprudence” of Roscoe Pound and Oliver Wendell Holmes. In this connection, see esp. Rumble, flmericaii Legal Realistn, 4-20. On the influence of Pound on the Realists, see Wigdor, Roscoe Pound, passim; on the influence of Holmes, see White’s comprehensive bibliographical essay, “The Rise and Fall of Justice Holmes.” Morton White has argued iii his well-known book, American Social Thought: The Revolt Against Formalism (New York, 1947), that Realism sprang from a general mood of skepticism in the early twentieth century, evidenced by the views of such leading intellectuals as Thorstein Veblen, Charles Beard, James Harvey Robinson, John Dewey, William James, and Oliver Wendell Holmes. G. Edward White has studied Realism as a legal analogue to the political philosophy of the Kew Deal; see esp. his article. “From Sociological Jurisprudence to Realism.” William Twining, in his Karl Llewellyn and the Realist Movement, 1-83, maintains, in effect, that Legal Realism was a by-product of a scuffle between the combined faculties of Yale and Columbia Law Schools versus the law faculty at Narvard. And most recently, in Yale Law School’s prestigious Storrs Lectures, Grant Gilmore has argued that Realism was just one stage-and a regrettable one at that-in a cyclical legal process. See “3 he Storrs Lectures: T h e Age of Anxiety,” Yale Law Journal 84 (April 1975): 1022-44. On the Realist Movement generally, see also Eugene V. Rostow, “The Realist Tradition in American Law,” in Paths of American Thought, ed. Arthur M. Sch!esinger, Jr.. and Morton White (Boston, 1963), 203.18; and Edward A. Purcell, Jr.. The Crisis of Democratic Theory (New York, 1971).

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The Historian toward precedents,“; to Lhe bombastic diatribes of a Jerome Frank, who thought nothing of taking on virtually the entire legal es- tablishment in his writings and utterance^.^^ Since the Kealists seldom agreed among themselves as to what were the inadequacies of the American legal system, it is difficult to isolate a self-con- scious group of individuals who could be labeled as “Realists.” The most successful attempt to catalogue the membership of the movement was provided by Karl Llewellyn in a 1931 article in which, ironically, he sought to dispel the notion that there was any such school as Legal Realism.Os In his article, Llewellyn offered the names of twenty leading members of the new “ferment.” Llewellyn’s list may not suit the fancy of every student of Ameri- can legal history, but his choices subsume a range of individuals whose attitudes properly express the great diversity of the Realist Movement.ce Among the twenty names were included those of seven men who had been active in the attempt to devise Colum- bia’s functional law curriculum in the late 1920s: Llewellyn, Moore, Powell, Douglas, Patterson, Yntema, and Oliphant. Also on the list were Yale’s innovative Law School Dean, C . E. Clarke, and one of the spearheads of the Johns Hopkins Institute, Walter Wheeler Cook. Furthermore, Llewellyn paid homage to even the most extreme of the Realists by duly noting the names of Max Radin and Jerome Frank.

If any cause brought accord among such a motley collection of scholars, it was the belief that the law should be receptive to the insights and materials of other disciplines, particularly the social sciences. Frank, for instance, in Law and the Modern Mind , set forth an avowedly psychoanalytical interpretation of the law’s pro- nounced “fixation” with certainty and predictability.71 In a later book, he applied the model of gestalt psychology to the theory of

Cardozo’s Realism coma across best in his published lectures. See Benjamin Cardozo, The h’ature of the Judicial Proces.6 ( N e w Haven, 1921); T h e Growth of the Law (New Haven, 1924): and The Paradoxes of Legal Science (Sew Haven, 1928).

a7See Jerome Frruik, Lou: nnd the Modern Mind ( N e w York, 1930); If Men Were Angels (New York, 1942); and Coitrts on 7r ia l : Myth and Reality in American Justice (New York, 1949).

as Karl Llewellyn, “Some Realism About Realism,” Harvard Law Review 44 (1931): 1222-5G. The article was prepared as a reply to Roscoe Pound’s “The Call for a Realistic Jurisprudence,” ibid.: 697-715.

a8 Wilfrid Rumble acknowledges early in his treatment of Lcgal Realism that his book is based upon the writings of the twenty men listed in Llewellyn’s celebrated article. Rumble, American Legal Realism, 2, note 1.

io The remaining nine names on Llewellyn’s list were Bingham, Lorenzen, Corbin, Leon Green, Hutchcson, Klaus, Sturges, Francis, and Tulin. “Some Realism About Realism,” 1227 ff.

nSee esp. 3-21 and 141-47.

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Adaptive Jurisprudence trial court decision making.T2 Douglas argued explicitly for the use of extralegal materials in legal study on many separate oc- casions. For example, in a 1936 address, he stressed the need for legal curricula to get away from the strict case method in order to affect a marriage between law and the social sciencesT3 This, of course, is what the Columbia reformers attempted to accom- plish with their functional course proposals in the 1920s.

In general, it can be said that the Realists were uncomfortable with evasive or poorly reasoned judicial opinions. They felt that the important legal questions of the day could not be decided effectively without the insights into human nature and human behavior provided by nonlegal disciplines. They certainly sympa- thized with Brandeis’s famous contention that a lawyer without training in economics could well become a public enemy. T o a man, they were critical of what Roscoe Pound had derisively termed “mechanical jurisprudence”-the belief that legal decisions were made by applying set precedents to unambiguous factual ~ i t u a t i o n s . ~ ~ T o the Realists, the judicial decision was a much more complicated rendering than the traditional theories as- sumed. Empirical information and theoretical insights bearing upon the facts of difficult cases-especially cases in the public law -were welcomed by the Realists. Extralegal materials were often valued as sources of these insights. In the post-1937 U.S. Supreme Court, when justices began citing a greater variety and a larger number of extralegal materials, this legacy of the Legal Realists was particularly evident.75 Douglas’s career on the Court, for instance, served as a self-fulfilling prediction: the numerous refer- ences to extralegal authorities in his written opinions simply followed up his preappointment pleas for greater integration of the social sciences into legal education and the judicial process in general. Although the Realists’ recipe, calling for a liberal mix- ture of the nonlegal disciplines in legal instruction, has not been followed to the extent urged by the most vocal proponents of the Movement, it is fair to say that Legal Realism alerted the profession to the existence of a range of extralegal sources that, prior to 1920, had been unknown or, at best, loathsome to most members of the American legal community.

Courts ov Trial, 165-89. i3 Douglas, “Education for the Law,” 278-89. ‘I Roscoe Pound, “Mechanical Juiisprudence,” Colzimbia Law Review 8 (1905).

ii SCC Johnson, “The Dimensions of Non-Legal Evidence. in the American F05-23.

Judicial Proccss,” 167.255.

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The Historian Adaptation and Creativity: Polarities in the American Legal Ex- perience

If adaptation was the distinguishing quality of American law in the early twentieth century, then creativity was the hallmark of national legal culture in the early part of the nineteenth century. T h e legal creativity of this “Golden Age” has been char- acterized in a variety of ways by American legal and intellectual historians: Roscoe Pound spoke of these years as comprising the “formative era of American law”; Daniel Boorstin argued that the early nineteenth century witnessed one of the “most creative outbursts” in modern legal history; Perry Miller praised the “intellectual elegance” of the lawyers, judges, and writers of the period; and, most recently, Grant Gilmore, in Yale Law School’s famous Starrs Lectures, termed this swath of American legal experience the “Age of Discovery. ’15 Common to all these apprais- als is the sentiment that this segment of American legal history witnessed unparalleled genius in the crafting of a uniquely Ameri- can legal system. T h e luminaries of the legal profession in those years- John Marshall, Joseph Story, Daniel Webster, Lemuel Shaw, iVilliam Pinkney, and Roger Taney-captured the attention and controlled the destiny of the Republic to an extent that is still unmatched. Moreover, with the publication of the systematic works of Joseph Story, James Kent, and David Hoffman, American legal writing began to assume an indigenous identity, moving slowly but inexorably away from its “old Blackstone Moorings.” 77

Most important, the leading legal writers, attorneys, i-.nd judges of the period began to use the common law which they had in- herited from England in an “instrumental fashion,” i.e., as a means of governing the polity and promoting social change rather than merely as a device for settling individual disputes. 7R

I n short, the leading participants in the legal process during the first half of the nineteenth century are appropriately viewed

See Pound, T h e Fornzntiue Eva of American Lnw (Boston, 1938); Boorstin, T h e Americans: T h e Natiomzl Experience (New York, 1958), 35 ff . ; Miller, T h e Li fe of the Mind in America, 117-55; Gilmorc, “The Slorrs Lectures,” 1022-44; and IIarr, ctl., The Golden Age o\ American Law, passim.

li T h e phrase “old Blackstone Moorings” is John Tarbell’s. Quoted in Miller, T h e Life of the Mind in America, 108.

See Horwitz, “The Emergence of an Instrumental Conception of American Law, 1780.1820,’’ Perspectives in Anzericnn Hislory 5 (1971): 237-326: Horwitz, “The Transformation in the Concept of Property in American Law, 1780-1860,” Uni- uersity of Clzicngo Lqw Review 40 (1973): 248-65; and William E. Nelson, T h e Impact of the Antislavery Movcment upon Styles of Judicial Reasouing i n Nine- teenth Century America,” Hni-uad Lazu Review 87 (1974): 513-66. Cf. Harry N. Scheiber, “Inst~umentalism and Property Rights: A Reconsideration of American ‘Styles of Judicial Reasoning’ in the 19th Century,” Wisconsin Law Review (1975): 1-18.

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Adaptive Jurisprudence by legal historians as producers of social change: John Marshall, the premier American judpe of the early nineteenth century, inventively grafted nationalist principles onto the U.S. Constitu- tion;79 Joseph Story, the greatest legal scholar in the period, per- formed unique feats of legal erudition, ferreting decisive legal concepts out of a maze of English and Continental precedents;Xo and Daniel Webster, who, with his many other accomplishments, is generally conceded to be the leading constitutional attorney of the early national period, voiced innumerable imaginative argu- ments in national and state courts during the first half of the Ilineteenth century. 81

By comparing the Creative Jurisprudence of the early nineteenth century with the Adaptive Jurisprudence of the early twentieth century, it is apparent that the lines of historical force between law and society can and do flow in different directions. In the years between 1801 and 1857, the law was actively used by judges, attorneys, and legal writers as an instrument of social change; that is, during the “formative era” the law acted upon society. But, in the years between 1908 and 1940, American law was more informed by externalities-by interest groups, by nonlegal disciplines, by reformers, and by the general Zeitgeist of the period-than in the earlier era. In comparison to the fortnative era, American law in the early twentieth century was more reac- tive than generative, more accommodating than originating. Yet, in both periods the American legal system underwent important and enduring changes; in both periods the craft of judicial decision making improved markedly; in both periods important streams of legal thinking bubbled forth: and in both periods law and society interacted to their mutual benefit. While it would be extremely difficult to establish that the early twentieth century constituted a second “Golden Age” of American law, it should be recognized that these years witnessed a time of tremendously important legal developments. The thrust of this essay has been to suggest that the legal dimensions of American history between 1908 and 1940 had a particular coherence and integrity. In addition, the theme of adaptation has been offered as an appropriate synthesizing principle for this important segment of America’s legal experience.

’!’See csp. Albert J. Beveridge, T h e Life of John Marshall, 4 vols. (Boston, 1916. 19). Cf. Oliver Wendell Holmes, “John Marshall,’’ in T h e Occasional Speeches of Justice Oliver Wendell Holvzes, ed. Mark DeWolfe H o w (Cambridge, 1962), 131.35; and Gordon, “A Comment on . . . ‘Creativity and Adaptation’.”

See Gerald T. Dunne, Juslicc Story and the Rise of the Supreme Court (New York, 1971).

See csp. Maurice Baxter, DnnieZ Webster and the Supreme Court (Amherst, 1966).

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Documents

Adaptive Jurisprudence: Some Dimensions of Early Twentieth-Century American Legal Culture