Legal Realism at Yale, 1927-1960

Chapter 1: The Context and Characteristics of Legal Realism

For well over a hundred years, the structure and content of legal training have followed the strictures of Harvard and Langdell.¹ During the 1920s and 1930s, however, a group of scholars known as legal realists developed a jurisprudence that challenged this education as having detrimental effects on unsuspecting students.² Their attack grew out of their contempt for the conceptualistic legal theory upon which the Harvard training was based. The realists pointed to the role of human idiosyncrasy in legal decision making, stressed the uselessness of legal rules and concepts, and emphasized the importance of greater efficiency and certainty in law administration.

The Language of Functionalism

The realists’ jurisprudence was known by several names. Perhaps it was most aptly titled functionalism because, as Karl Llewellyn once noted, the idea of functionalism expressed the realists’ interest in, and valuation by, effects. On its negative side, as Felix Cohen said, functionalism represented an assault upon all dogmas and devices that cannot be translated into terms of actual experience. On its positive side, functionalism sought to discover "the significance of the fact through a determination of its implications or consequences. It attempted to redefine the concepts of abstract thought as constructs, or functions, or complexes, or patterns, or arrangements, of the things that we actually see or do."³ Functionalism, then, reflected an attempt to understand law in terms of its factual context and economic and social consequences.

As such, functionalism had no patience for conceptualism or for the attempt by traditional jurists to reduce law to a set of rules and principles, which they insisted guided judges to their decisions. Max Radin defined conceptualism as the theory that there are a number of principles which can be stated in a schematic form; it was, he thought, realism’s inherent enemy. Radin condemned legal education for its orderly arrangement of propositions, ticketed with case-names, each proposition being recorded in the student’s mind as the ‘rule’ that the case ‘stands for.’ This unfortunate phrase is, of course, the essence of conceptualism—which is a fighting word.⁴

Not all realists were so openly antagonistic to conceptualism, but most would have agreed with Felix Cohen:

Legal concepts (for example, corporations or property rights) are supernatural entities which do not have a verifiable existence except to the eyes of faith. Rules of’law’, which refer to these legal concepts, are not descriptions of empirical social facts (such as the customs of men or the customs of judges) nor yet statements of moral ideals, but are rather theorems in an independent system. It follows that a legal argument can never be refuted by a moral principle nor yet by any empirical fact, jurisprudence, as an autonomous system of legal concepts, rules, and arguments, must be independent both of ethics and of such positive sciences as economics or psychology. In effect, it is a special branch of the science of transcendental nonsense.⁵

For Llewellyn as for Cohen, one of functionalism’s most important features was its "distrust of traditional legal rules and concepts insofar as they purport to describe what either courts or people are actually doing. As he said on another occasion, Legal rules mean, of themselves, next to nothing. They are verbal formulae, partly conveying a wished-for direction and ideal. But they are, to law students, empty. Hessel Yntema considered rules and principles empty symbols which take on significance only to the extent that they are informed with the social and professional traditions of a particular time and place. … To say that the rule is the law, that symbol is reality leaves us still in the squirrel cage of conceptualism. William O. Douglas complained that analysis has been so conceptualized that the attention is too frequently focused on the device used rather than the function which the device is intended to perform. To say that a corporation will not be insulated from liability for the acts of its subsidiary when the subsidiary is an ‘agency,’ ‘adjunct,’ ‘instrumentality,’ ‘alter ego,’ ‘tool,’ ‘corporate double,’ or ‘dummy’ of the parent is not helpful, Douglas noted. These concepts themselves need defining. At best they merely state results. And the results are significant only in light of the facts. Thurman Arnold railed against the so-called common law of trusts … which is an attempt to classify under one rather simple set of concepts, aspects of every activity of American business. Herman Oliphant maintained that, like theology, much of legal thought accepts certain concepts, some of them originating in medieval scholasticism, as fixed premises adhering in the nature of things. These concepts are taken by courts as starting points of a logical process which pretends to evolve the solution of contemporary problems in social control."⁶

Functionalism sometimes took the parallel between law and theology further in its retelling of a story describing the heaven of legal concepts. As one realist recounted it:

Some fifty years ago a great German jurist had a curious dream. He dreamed that he died and was taken to a special heaven reserved for the theoreticians of the law. In this heaven one met, face to face, the many concepts of jurisprudence in their absolute purity, freed from all entangling alliances with human life. Here were the disembodied spirits of good faith and bad faith, property, possession, laches, and rights in rem. Here were all the logical instruments needed to manipulate and transform these legal concepts and thus to create and to solve the most beautiful of legal problems. Here one found a dialectic-hydraulic-interpretation press, which could press an indefinite number of meanings out of any text or statute, an apparatus for constructing fictions, and a hair-splitting machine that could divide a single hair into 999,999 equal parts and, when operated by the most expert jurists, could split each of these parts again into 999,999 equal parts. The boundless opportunities of this heaven of legal concepts were open to all properly qualified jurists, provided only they drank the Lethean draught which induced forgetfulness of terrestrial human affairs. But for the most accomplished jurists the Lethean draught was entirely superfluous. They had nothing to forget.⁷

The realists had never been offered the Lethean draught, and they were too young to have seen heaven.⁸ Thus they focused on the interrelationship between law and society and refused to believe that legal concepts and rules were the sole determinants of judicial decisions. Of course, no realist believed that legal rules and concepts were totally irrelevant to the appellate process.⁹ Otherwise, so many realists would not have wanted to become judges.¹⁰ As Hessel Yntema noted in 1941, If the realists really believed that legal concepts have no significance, it would be difficult to understand why they have been so concerned with their real significance.¹¹ Functionalism accepted legal rules so long as they were viewed as tentative classifications of judicial decisions.¹² The realists did not object to legal rules and concepts per se; they believed that they could be useful in predicting judicial decisions. But they found other factors equally relevant to their understanding of the judicial process.

What were those factors? Functionalism taught that judicial decisions were the product not only of judicial adherence to legal rules and concepts but of judicial idiosyncrasy as well. Most realists agreed with psychologist Edward S. Robinson, a professor at Yale Law School, that juristic problems were ultimately psychological problems. Robinson argued that the ideas of Freud were most nearly identical with those of jurisprudents, and the realists gleefully used the Freudian concept of the rationalization to understand the judicial opinion. As early as 1921, historian J. H. Robinson applied the concept to explain the reasons given by public officials for their acts, and by 1925 Max Radin had applied it to the reasons given by judges in their opinions for their decisions.¹³ Three years later, Circuit Judge Joseph Hutcheson published his own analysis of the process. After examining all of the available material, Hutcheson wrote, the judge waits for the feeling, the hunch—that intuitive flash of understanding that makes the jump-spark between question and decision, and at the point where the path is darkest for the judicial feet, sheds its light along the way. The judge reached a decision by feeling and not by judgment; by ‘hunching’ and not by ratiocination. The ratiocination appeared in the judicial opinion: The vital, motivating impulse for the decision is an intuitive sense of what is right or wrong for that cause, and … the astute judge, having so decided, enlists his every faculty and belabors his laggard mind, not only to justify that intuition to himself but to make it pass muster with his critics.¹⁴ Hutcheson thus distinguished between the decision, which he treated as a process of the unconscious, and the opinion, which he described as a rationalization of the decision.

The publicity which Jerome Frank gave Hutcheson’s work in his own Law and the Modern Mind ensured that many realists would adopt this distinction and would treat the judicial opinion as a rationalization. For Frank, the judicial opinion was "a censored exposition, written by a judge, of what induced him to arrive at a decision which he has already reached. Max Lerner remarked upon the barrage of rationalization emanating from the bench. Karl Llewellyn warned law students of the judge’s use of rationalization to make the decision appear acceptable to bar and other branches. Wesley Sturges emphasized that the alleged process of rationalization should not pass unnoticed or unemphasized, and Leon Tulin pleaded against worship … at the shrine of ex post facto rationalization. Edward S. Robinson wondered why judges persist in giving explanations of their own thought-processes which they ought to know are psychologically irrelevant. Walter Wheeler Cook distinguished between the ‘real’ reasons" for a judge’s decision and the reasons the judge gave in the opinion.¹⁵ Functionalism made the judicial opinion an object of derision.¹⁶

The realists disagreed over precisely which idiosyncratic factors in addition to legal rules influenced the decisional process. Frank, who had been psychoanalyzed before his conversion to realism, found Oliver Wendell Holmes’s acknowledgment that judges reasoned according to their political, economic, and moral biases insufficient. Those categories were too gross, too crude, too wide, he announced in Law and the Modern Mind. According to Frank, uniquely individual factors often played a much more important role in judicial decision than anything which could be described as a political, economic or moral bias. First, Frank noted, idiosyncratic biases modified general ones: a judge’s political prejudice against a racial group might be deflected by a desire to impress someone who did not share that bias. Second, idiosyncratic biases affected the judge’s perception of the facts on which he based his decision and opinion. A witness who spoke with a certain accent might arouse memories that catapulted the judge into a Proustian exploration of the past. Those memories might affect the judge’s initial hearing or subsequent recollection of the witness’s statement.¹⁷

Yet Frank’s analysis of the factors that affected the judge’s reasoning did not particularly interest his fellow realists. Pressed, they undoubtedly would have admitted that a bad breakfast might indeed lurk behind a judicial opinion. As Llewellyn noted, however, "The difficulty in scientific use of any hypothesis resting on personal idiosyncrasy is to find adequate evidence to justify attributing any particular decision to such a factor."¹⁸ Further, as one critic of the realists pointed out, the logical implications of gastronomic jurisprudence were that law schools should teach their students how to psychoanalyze and bribe judges, an activity which not even realist law professors were prepared to undertake.¹⁹ Most realists thus remained content with the traditional crude categories—the political, economic, and moral biases—that might subconsciously influence the judge’s decision.

Although the realists’ categories were not as sophisticated as Frank’s, they carried the same implication—that legal rules were not the sole factor in the decisional process. The realists incurred the criticism of political scientists by their refusal to rank extralegal factors in order of their importance to the judge’s decision.²⁰ How could they when the significant extralegal factors were so idiosyncratic and might vary so greatly from judge to judge?

In identifying the role of idiosyncrasy in the judicial process, functionalism seemed to call the possibility of legal certainty into question. The tone of much realist discourse was set by Jerome Frank, who asked why lawyers and judges continued to claim that legal rules existed and made law predictable. Frank’s realist salvo, Law and the Modern Mind, hypothesized that judges and lawyers were victims of the childish desire to have a fixed father-controlled universe free of chance and error. As children, they had looked to their fathers to provide that certainty and stability. When they realized that their fathers were fallible, they turned to law, hoping to find it there. Published in 1930, Law and the Modern Mind was an intellectual atomic bomb; when it exploded few were untouched by the fallout. Although Underbill Moore dismissed it as ‘parlor’ psychology, most law professors took it more seriously. The standard reaction, recalled one observer, was that it just isn’t so—but—I wonder…. Few realists were willing to attribute the desire for legal certainty to a childish wish for a fixed, father-controlled universe; most accepted Frank’s thesis about uncertainty in the legal world.²¹

Yet the realists’ belief that legal rules and concepts did not guarantee legal certainty did not mean that they believed that legal certainty was impossible to attain. As Frank himself said: If we relinquish the assumption that law can be made mathematically certain, if we honestly recognize the judicial process as involving unceasing adjustment and individualization, we may be able to reduce the uncertainty which characterizes much of our present judicial output to the extent that such uncertainty is undesirable. We may augment markedly the amount of actual legal certainty. Karl Llewellyn added that although Frank had shown that legal rules did not guarantee legal certainty, it was both possible and desirable: What law needs is a manageable degree of certainty and predictability—enough to get on with. After reading Law and the Modern Mind, Felix Cohen noted that if reasonably certain predictions of judicial behavior could never be made … then all legal decisions would be simply noises, and no better grist for science than the magical phrases of transcendental jurisprudence.²²

Functionalism thus sought to aid lawyers by increasing law’s certainty. For after all, as Llewellyn noted, a lawyer is not a social scientist; he is a craftsman. He is a specialized technician. He specialized in the regulation of abnormal situations, and in the use of highly technical devices and needed a specialist’s knowledge of abnormal situations and legal techniques. The realists sought to help lawyers acquire that knowledge, and Llewellyn believed they were fulfilling that task. He touted the functional casebooks that realist law professors developed for their students as office tools, which had reorganized the law around the practitioner’s needs. Here is original work, Llewellyn wrote, here is canny grasp of the problems pressing today; here is canny grasp of the problems issuing today; here is a collection of references not otherwise to be had; here is an adequate finder apparatus. It is sad to see such service wasted wholly on the desert air of students who lack background to appreciate it fully.²³

Llewellyn also emphasized the usefulness of realist scholarship, which sought to integrate jurisprudence with a specific problem. Functionalism often sounded a little strange, he noted, "when its context has been that of Jurisprudence, because Jurisprudence has been conceived as a Philosophy of Law, and Law has commonly been distinguished from Fact. But Jurisprudence as a Philosophy of Law is too narrowly conceived to reach its full development; the modern writers are conceiving it as a philosophy not only of Law, but also of Law’s Function, and of Law’s Operation, and of Legal Institutions: i.e., of Law and Law’s Work, and Law’s Personnel."²⁴ Functionalism heightened law’s certainty through its study of jurisprudence within the context of specific fact situations, ranging from corporate finance to civil procedure, many of which had never received attention before. As Charles E. Clark said, the realists found much information of the most practical nature unnoticed in current legal thought.²⁵ Perhaps no realist was more devoted to the integration of jurisprudence with a heretofore unstudied fact situation than William O. Douglas, whose many articles endorsing a functional approach to the law of business associations and bankruptcy were replete with condemnations of conceptualism and celebrations of functionalism. Functionalism, Douglas promised, would increase certainty by leading rather to a consideration of the phenomena observed in the organization and operation of a business than of the mere form itself of business. That would result in observations of the things men attempt to do and are found doing when engaging in business.²⁶

All realists shared Douglas’s objective; all tried to breach the gap between law in books and law in action.²⁷ As Herman Oliphant noted:

Our knowledge as to the phases of human conduct amenable to law is slight and doubtful. Moreover we know little about its actual effectiveness as to phases well within its proper sphere. For example, such have been the traditions of legal scholarship, among which all students of law have grown up that, with enough time to review, almost any one of them could probably expound the technical legal definition of larceny and win for it general admiration of the symmetry and completeness of the logical development which legal scholarship has given it. But if he were asked to state something as to the limits of the criminal law’s effective control of pawnbrokers as possible culpable receivers of stolen property, he might ransack libraries but would have to stand mute.²⁸

By increasing legal certainty through the acquisition of information about law’s operational effects, the realists hoped to make law more efficient. No realist more effectively articulated this goal than Yale Law School’s Thurman Arnold. Arnold endorsed a functional law of criminal attempts because it would eliminate the need to clutter up our briefs or our opinions with citation of cases where the defendant was trying to commit arson or bigamy or some misdemeanor; he spoke of reclassification of the law of trusts with respect to practical business situations in which the terminology was used; he distinguished between the jury trial, which created the romance and color of our judicial process, and more efficient methods of judicial investigation [which] can easily be imagined; and he warned that if the public read the work of most law professors doubts might arise as to the efficiency of their efforts.²⁹ Although few realists articulated the need for it as precisely as Arnold, a preoccupation with efficiency lay behind the entire realist movement: for Llewellyn one of functionalism’s unique characteristics was its insistence upon "sustained and programmatic attack on the problem of law along any of these lines. To Llewellyn it was as novel as it is vital for a goodly number of men to pick up ideas which have been expressed and dropped, used for an hour and dropped, played with from time to time and dropped—to pick up such ideas and set about consistently, persistently, insistently to carry them through"³⁰

The language of functionalism, then, was new, but it was not complex. Functionalist discourse conveyed a distrust of and focused less on the legal rules and concepts that preoccupied conceptualists and more on the role of idiosyncrasy in the judicial process. By describing law’s operational effects, the speakers of functionalism hoped to increase legal certainty and efficiency. Functionalism thus challenged those who regarded conceptualism as the repository of legal certainty and efficiency.

The Origins of Functionalism

The conceptualism which functionalism attacked dominated the legal world at the end of the nineteenth century and was particularly compatible with the post-Darwinian era. Christopher Columbus Langdell, its principal exponent, was an amateur botanist, who classified law much as he did plants. As dean of Harvard Law School between 1870 and 1895, Langdell preached that all law should be reduced to a set of well-categorized rules and principles. In accordance with his philosophy, and at the behest of Harvard University President Charles Eliot, Langdell revolutionized legal education.³¹ During the nineteenth century, an aspiring lawyer usually entered the profession by apprenticing himself to an established lawyer, and those who did attend the lectures and read the treatises law schools required perceived them as secondary to the apprentice experience.³² Langdell transferred the study of law from the office to the university.

Langdell based his theory of education on two postulates, which he described in 1886: first that law is a science; secondly, that all the available materials of that science are contained in printed books. If law were not a science it was a species of handicraft that could best be learned by apprenticeship to a practitioner. If it were a science, it will scarcely be disputed that it is one of the greatest and most difficult of sciences, that it needs all the light that the most enlightened seat of learning can throw upon it. If printed books were the ultimate source of legal knowledge … and if the only assistance which it is possible for the learner to receive is such as can be afforded by teachers who have travelled the same road before him,—then a university and a university alone, can furnish every possible facility for teaching and learning law. The library, Langdell announced, was the student’s laboratory, and in the bound volume of appellate opinions he would find all that he needed to know. To assist students, Langdell and his colleagues collected those appellate cases in casebooks; students who used them learned law by the case method.³³

Langdell and his disciples were conceptualists—for them, the very fact that law was scientific meant that it could be reduced to a few fundamental rules and principles. For such individuals, a judge did not make law when he rendered a judicial opinion. His decision did not reflect his own particular prejudices or the peculiar circumstances of the case; rather, he found the concepts, rules, and principles that had been revealed in previous decisions and applied them. Langdell’s botanical background was apparent in his announcement that law, considered as a science, consists of certain principles or doctrines, which could be so classified and arranged that each should be found in its proper place. He used his casebook on contracts to select, classify, and arrange all the cases which had contributed in any important degree to the growth, development, or establishment of any of its essential doctrines.³⁴ His most important task, as he perceived it, was to teach his students to identify the general legal principle which he believed could be drawn from each case. When these principles were discovered, wrote Samuel Williston, he would trace their consequences with as relentless logic as that employed by the sternest Calvinist. Decisions inconsistent with them, he said, were wrong.³⁵

Law professors did not adopt the case method overnight.³⁶ It was not surprising that they came only slowly to appreciate it. To say that Lang-dell lacked leadership qualities would be a charitable understatement. The portrait of him hanging in the Harvard Law School Library suggested to the law school’s official historian that during his deanship he was an old, timid, unworldly scholar, probably ineffective.³⁷ Students considered him an ‘old crank’ ³⁸ and boycotted his classes.³⁹ Williston conceded that he was an extremely conservative legal thinker who possessed a retiring disposition. Both his disposition and his poor eyesight caused him to have little contact with his colleagues and students; Williston hypothesized that it was his eye trouble that caused him to have little interest or sympathy with any development of law later than 1850.⁴⁰

Yet Langdell’s case method had the prestige of the nation’s largest and most powerful law school behind it. The dean of Wisconsin College of Law might well argue that the case method would make students slow,⁴¹ but what was his voice against those of Harvard’s faculty, dean, president, and young Harvard graduates who infiltrated the faculty of a neighboring law school? Harvard already possessed a certain mystique; when its professors spoke, others listened.⁴²

The case method’s success was attributable to several factors besides Langdell’s Harvard affiliation. First, the case method’s inexpensiveness endeared it to university and law school administrators alike; Harvard Law School in the 1870s required only one professor for every seventy-five students.⁴³ Second, the case method, designed for the university, was available principally to upper-class oldstock students. It made entry into the legal profession more difficult for the poor and may have proved attractive to an initially recalcitrant bar because of the opportunities it afforded to preserve cultural hegemony by barring undesirables from the practice of law.⁴⁴ Third, a new type of law faculty emerged that proved hospitable to the case method. The introduction of the case method coincided with the advent of the professional law teacher. Beginning in the 1870s, law schools, like university departments, began striving for what historian Burton Bledstein has called an academic culture.⁴⁵ Although law schools continued to hire attorneys and judges for the faculty, they also began to appoint recent graduates who had not practiced law and wanted to become full-time professors. The outstanding example was James Barr Ames, who joined the Harvard faculty in 1873 and whose youth and dynamism made up for Langdell’s bookish reclusiveness.⁴⁶ Ames stayed at Harvard; more typically the aspiring law teacher left Cambridge after receiving his law degree to spread the gospel of the case method through colonial service at a law school in the hinterland.⁴⁷ Despite his austerity, Langdell, then, was a leader who attracted intellectual disciples. His case method earned them esteem, for it made university legal study a prerequisite for law practice at the same time that it infused legal study with an intellectual respectability that made it attractive to members of the university community in other disciplines.⁴⁸

Finally, the case method supported the status quo. Its scientific nature was consistent with the passion for science of the Darwinian and positivistic late nineteenth century. More important, the conceptualism behind the case method bolstered the laissez-faire economics of the age. For Williston, Langdell showed students and legal thinkers how to discover the principles that apparently had controlled decided cases, and to apply to every variety of facts these principles, on the assumption that they would continue to be controlling for the immediate future. One who follows this impulse will tentatively, at least, accept as valid the principles that he finds have been operative in the past.⁴⁹ Grant Gil-more put it more succinctly: The judges who thought this way and wrote this way set their faces against change.⁵⁰ They left social engineering to the Robber Barons. Langdell had introduced an intellectual innovation and endowed it with a strength which boded well for its ability to withstand challenges.

This is not to suggest that the case method remained inviolate. Two of Langdell’s contemporaries, James Barr Ames and William Keener, came to disagree with him that the student could learn all the substantive knowledge he needed from reading cases and began to tout the case method as a way of teaching the process of legal reasoning. Under Ames’s influence, the case method was celebrated for its methodology instead of the substantive information it conveyed, thus strengthening its invincibility by promising to teach the student to think like a lawyer.⁵¹

Even the most radical legal thinkers of the day endorsed a conceptualistic legal education. When Oliver Wendell Holmes reviewed Langdell’s casebook, he condemned Langdell as the world’s greatest living legal theologian, whose "ideal in law, the end of all his striving, is the elegantia juris, or logical integrity of the system as system."⁵² Yet even as Holmes cursed the casebook and announced that the life of the law was not logic but experience,⁵³ he maintained that Langdell’s casebook was of unequalled value as a teaching device: A professor must start with a system as an arbitrary fact, and the most which can be hoped for is to make the student see how it hangs together and thus to send him into practice with something more than a rag-bag of details.⁵⁴ This condemnation of Langdell’s conceptualism along with admiration for it as a teaching device points to a schizophrenia within the legal profession that ultimately may best explain why Langdellianism came to dominate legal training just as individuals such as Holmes were beginning to rebel against it.

Such an education naturally proved agreeable to conceptualistic theoreticians. Thus Harvard’s Joseph Beale, who attempted to systematize the entire field of conflict of laws by reducing it to two principles, and Beale’s colleague Samuel Williston, who used Langdell’s contracts casebook into the twentieth century, had few qualms about Langdellian theory. Like Langdell, they taught that law could be reduced to a set of rules and principles that guided judges to their decisions and that law was autonomous from society.

That conceptualistic vision motivated the American Law Institute’s Restatement of the Law project, which Harvardians staffed. Launched in 1923, the restatement project may well have represented the final effort to realize Langdell’s ideal of a science of law. By restating the law in a clear and simple fashion, the institute hoped to illuminate its correct principles.⁵⁵ The institute selected Harvard law professors Beale, Willis-ton, Francis Bohlen, and Warren Seavey as the reporters of its four restatements. Each was assigned a subject: Williston drew contracts; Beale, conflicts; Bohlen, torts; and Seavey, agency. Subsequently their colleague Austin Scott agreed to write the restatement of the law of trusts. The institute directed its reporters to make certain much that is now uncertain and to simplify unnecessary complexities and to promote those changes which will tend better to adapt the laws to the needs of life. As work progressed, the institute abandoned the second objective, telling its reporters to state clearly and precisely in the light of the decisions the principles and rules of existing law. Increasing legal certainty became the institute’s only objective, a goal underlined by its decision to print the rules in especially bold black letters.⁵⁶

By 1923, however, many found it increasingly difficult to follow Langdell in thinking of law as a natural science. The intellectual world was becoming less concerned with conceptualism’s taxonomy. The emphasis had shifted from the natural sciences to the social sciences. Functional-ism pervaded innovative intellectual thought in the social sciences during the first four decades of the twentieth century. Indeed, legal realism was only one aspect of an intellectual revolution against formalistic thought which swept late nineteenth- and early twentieth-century America. As realist Felix Cohen noted: The problem of eliminating supernatural terms and meaningless questions and redefining concepts and problems in terms of verifiable realities is not a problem peculiar to law.⁵⁷ In philosophy, psychology, anthropology, linguistics, history, economics, and sociology there had been a reaction against abstractions and traditional symbols and a movement toward a concept of society in evolution. Darwin’s discovery of evolution and William Graham Sumner’s application of that theory to society⁵⁸ had caused a shift in emphasis away from structure and toward operations, or functionalism. As Horace Kallen noted in the Encyclopedia of Social Sciences, the term functionalism summed up the most general of the many consequences of Darwinism upon the sciences of man and nature. This was to shift the conception of ‘scientific thinking’ into a temporal perspective; to stress relations and activities as against terms and substances, genesis and development as against intrinsic character, transformation as against continuing form, dynamic pattern as against static organization, processes of conflict and integration as against formal composition out of unchanging elements.⁵⁹

By the 1930s, John Dewey and James Rowland Angell had moved psychology away from structuralism, which stressed the elements of consciousness, to functionalism, which emphasized how and why conscious processes are what they are. Rejecting all philosophy that employed the concept of consciousness, John Watson had begun to study the raw behavior of animals and humans; behaviorism, he boasted, was the only consistent and logical functionalism. C. K. Ogden and I. A. Richards had tried to expose the tyranny of language by distinguishing between the symbolic and emotive functions of words. R. H. Tawney and Max Weber had shifted attention away from religion as a brooding omnipresence in the sky and toward the relationship between religion and capitalism. Historian Charles E. Beard had examined the relationship between the Founding Fathers’ constitutional aspirations and their pocketbooks. Political scientist Charles Merriam had begun his academic career at Columbia in 1900 by writing a dissertation on the history of the concept of sovereignty; by 1921 he had noted that political scientists had studied urban problems in terms of ‘good’ and ‘bad’ government, of boss rule and reform, of innumerable mechanisms and contrivances ingeniously devised, and asked whether it was not possible to go more deeply into the basis of the city, scrutinize more accurately the social and political processes of which the political is an integral part? Bronislaw Malinowski and Franz Boas had reoriented modern anthropology to concentrate above all on what is now usually called the function of a custom, belief or institution … the part which is played by any one factor of a culture within the general culture.⁶⁰

Functionalism led to a new concern with the social process. That emphasis stemmed from the work of economist Thorstein Veblen, who exposed the bankruptcy of classical economic theory: built upon assumptions of a natural order in which immutable laws had created competition and an economic man who automatically responded to those laws in accordance with his own self-interest, economics was replete with meaningless abstractions. Veblen’s disciple, institutionalist Walton Hamilton, had announced that modern economics should abandon those abstractions and focus instead on societal institutions.⁶¹ Acknowledging that the individual was the product of society’s institutions, sociologists C. H. Cooley, Albion Small, and E. A. Ross had focused on social operations instead of social structure; their emphasis on social process thrust into the foreground of the philosophic consciousness the notion of society as a developing organism achieving its continuity through some sort of selective processes related to the performance of function.⁶² No longer was it possible to study a discipline without studying related disciplines and the culture in which they functioned.

It followed that conceptualistic taxonomy—the attempt to systematize a discipline through the use of abstractions to classify it—and the accompanying reasoning had to be abandoned. The attack on Euclidean geometry and the introduction of the theory of relativity in the scientific world coexisted with a disdain for deductive reasoning from abstractions in the social sciences; Veblen stressed the domination of such reasoning in explaining why economics was not an evolutionary science. As economist Rexford Tugwell wrote, Conceptualism is the particular bugbear of the social sciences.⁶³

Lay scholars in other fields who had participated in this intellectual revolution against conceptualism were applying its implications to law. Outside the legal profession many agreed with Holmes and Pound that law reflected social change. Historians such as Charles Beard and political scientists such as Frank Goodnow had moved beyond the cautious constitutional realism of the Gilded Age and were trumpeting that law was politics.⁶⁴ In an article on logical method and the law, pragmatist John Dewey had announced that judges had too frequently failed to think of legal rules as tools but had allowed them to become harmful and socially obstructive by acting as if they were absolute and fixed antecedent premises.⁶⁵ Other disciplines realized how badly the legal house needed cleaning and encouraged lawyers to undertake that task.

The legal realists tried to absorb the lessons of functionalism and to clean the house of jurisprudence. Realism had no exact point of origin, but by the late 1920s Columbia and Yale law professors were writing article after article that espoused the functional approach and were trying to reorganize their courses and casebooks along functional lines.⁶⁶ Yet it would be more correct to say that Holmesian skepticism now replaced conceptualism, for the jurisprudential themes commonly regarded as realism’s legacy long preceded it. Holmes had announced that judges made law in accordance with the felt necessities of the time fifty years before the realists burst onto the scene.⁶⁷ Jerome Frank liked to complain that Holmes had unfairly received his reputation for intellectual leadership because he was epigrammatic,⁶⁸ but the truth of the matter is that while the realists underlined the role of human idiosyncrasy in judicial decisions, jurisprudentially they elaborated upon Holmes more than they led the way. As an intellectual movement, legal realism was a fairly unoriginal contribution.

If the roots of realism stretched back to Holmesian skepticism about the nature of law and out to broader developments in intellectual thought, they were also profoundly professional. As the new century unfolded, it became clear that the vision of law held by Harvard conceptualists had not become reality. Litigation exploded; Williston estimated that the bound volumes of American case law nearly tripled in the thirty years preceding World War I.⁶⁹ Perhaps because not all judges were Harvard trained, they had frequently applied the wrong legal principles to the cases before them. Despite the best efforts of the conceptualist to identify the proper legal principles that would determine future judicial decisions in the restatement and elsewhere, legal certainty had disappeared. Lawyers could not predict the outcome of future decisions and thus could not advise clients about an appropriate course of action. Functionalism sought to aid the lawyer who confronted the welter of conflicting precedents and wondered which a judge would apply.

The realists looked to the social sciences to help them reform jurisprudence. A determination to integrate law with the social sciences pervaded their functionalism. Because the realists acknowledged the interdependence of law and society, it followed, as the Yale Law School Curriculum Committee observed, that law must be studied as part of the social process, with fully informed appreciation of the factors which should influence judgment between one rule, one statute, one form of regulation and another.⁷⁰ How could lawyers and judges decide which social policy to choose? Most realists believed that the key lay in the social sciences. Their functionalism preached that law was one of the social sciences and that the social sciences should be examined to illuminate social policy. As Llewellyn said, The same acts of the same human beings are raw stuff for psychology, sociology, social psychology, economics, or law, or history, according to the chosen line of abstraction and of context. Just as the same raw stuff existed for all, so did the same inquiry: ‘Whither do we want society to move?’ ⁷¹ Yet ultimately the realists did not use the social and behavioral sciences so much to guide them in making social policy as to justify their skepticism about the conceptualists’ rules.

Of course, the realists remained indifferent to some social sciences. In the 1920s, sociology and political science still lacked a sophisticated methodological framework.⁷² Although more advanced, anthropology also proved unhelpful. Realists such as Huntington Cairns, Felix Cohen, and Jerome Frank admired functional anthropology but ignored it because the primitive societies anthropologists studied were so different from modern society that their findings and methodology could not always be applied to modern society.⁷³ Thus when Karl Llewellyn published The Cheyenne Way, which was based on field research he and anthropologist E. A. Hoebel did among the Cheyenne Indians, Frank announced that Llewellyn would have better spent his time studying the law-ways of Tammany Hall braves than the Cheyenne Indians. The realists did not find anthropology relevant.⁷⁴

Nor were the realists attracted to behaviorism, although Yale Law School’s Underhill Moore attempted to develop an empirically based psychological theory of behavior. With Charles Callahan he counted endless numbers of cars on New Haven streets as part of an empirical study that examined the effect of changes in traffic ordinances and ticketing practices upon human behavior. Believing that individuals responded to legal rules just as they did to other stimuli, Moore and Callahan developed a Learning Theory that treated overt behavior with respect to legal rules and all other activity as behavior an individual had learned or was learning to perform. His behavior is determined by the relation between four factors—drive, cue, response, and reward—which relation he has learned, or is learning. In order to learn one must be driven to make a response in the presence of a cue, and that response must be rewarded. To learn, one must ‘want something, do something and get something.’ The thirsty person, Moore and Callahan said, noticed a drinking fountain, operated it, and was rewarded with water. The individual learned this behavior in a series of attempts to relieve thirst in similar situations. That learning process had established the relationship between the particular drive—be it thirst or a desire to ignore legal ordinances so as to park near Yale Law School—cue, response, and reward.⁷⁵

Few realists went so far as Moore in comparing responses to legal rules to responses to water fountains, but behaviorism’s stimulus-response rhetoric attracted Herman Oliphant and Jerome Frank. In his presidential address to the American Bar Association in 1928, Oliphant urged his colleagues to shift their attention from the vocal to the nonvocal behavior of judges. The examination of what the judges actually do when stimulated by the facts of the case before them is the approach indispensable to exploiting scientifically the wealth of material in cases, Oliphant observed. Yet as Simon Verdun-Jones has pointed out, Oliphant himself never attempted such a study. Nor did Jerome Frank. Although Frank spoke of the stimuli which make a judge feel that he should try to justify one conclusion rather than another, he joined the majority of realists who rejected behaviorism.⁷⁶

When the realists’ functionalism took the form of institutionalism it proved more useful, for it explained the durability and fallacy of conceptualism. Veblen’s institutionalism greatly influenced the realists: as one said, Veblen’s indictment of classical economists’ search for ‘higher or definitive syntheses and generalizations’ and of classical economic theory’s avoidance of " ‘economic life processes’ in its development of ‘a body of logically consistent propositions concerning the normal relations of things—a system of economic taxonomy’ might be applied word for word to classical jurisprudence, if we merely substitute for the terms ‘economic’ and ‘economist’ the terms ‘legal’ and ‘jurist.’ "⁷⁷ Legal institutionalists such as Thurman Arnold, Walton Hamilton, and Max Lerner devoted a great deal of energy to showing that humans developed the folklore of law, which represented the belief that there must be something behind and above government without which it cannot have permanence or respect, because man is the only animal that is ape to his dreams, and the dream which he demands to-day is that his government appear to be rational.⁷⁸ The Constitution served as the totem they needed to convince themselves rationality existed.⁷⁹ The knowledge that humans were irrational beings who reached out to legal rules as one of the few totems of rationality they had explained conceptualism’s popularity.

Realists also found contemporary linguistic theory valuable in their attempts to expose the ambiguity of language in the judicial opinion. The realists who read Ogden and Richards’s The Meaning of Meaning learned that despite words’ apparently fixed meaning, they could be understood only through an examination of their ever-changing context.⁸⁰ Negligence as applied by one judge to a certain set of facts did not have precisely the same meaning as negligence applied by another judge to a different set of facts, and lawyers were deceiving the public when they suggested that the language in one judicial opinion would enable them to predict the language in