American Legal Realism and Empirical Social Science


John Henry Schlegel recovers a largely ignored aspect of American Legal Realism, a movement in legal thought in the 1920s and 1930s that sought to bring the modern notion of empirical science into the study and teaching of law. In this book, he explores individual Realist scholars' efforts to challenge the received notion that the study of law was primarily a matter of learning rules and how to manipulate them. He argues that empirical research was integral to Legal Realism, and he explores why this kind of ...
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John Henry Schlegel recovers a largely ignored aspect of American Legal Realism, a movement in legal thought in the 1920s and 1930s that sought to bring the modern notion of empirical science into the study and teaching of law. In this book, he explores individual Realist scholars' efforts to challenge the received notion that the study of law was primarily a matter of learning rules and how to manipulate them. He argues that empirical research was integral to Legal Realism, and he explores why this kind of research did not, finally, become a part of American law school curricula. Schlegel reviews the work of several prominent Realists but concentrates on the writings of Walter Wheeler Cook, Underhill Moore, and Charles E. Clark. He reveals how their interest in empirical research was a product of their personal and professional circumstances and demonstrates the influence of John Dewey's ideas on the expression of that interest. According to Schlegel, competing understandings of the role of empirical inquiry contributed to the slow decline of this kind of research by professors of law.

Originally published in 1995.

A UNC Press Enduring Edition -- UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.

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Editorial Reviews

From the Publisher
"A masterful study. . . . Every law and social science researcher should read the book. . . . It is a brilliant book, and a wonderful 'read.'"—Law and Politics Book Review

"American Legal Realism and Empirical Social Science is a refreshing and insightful analysis of the origins, flowering, and demise of 'legal realism.' . . . His book succeeds admirably not only in expanding our understanding of legal realism but also in illuminating both the cultural evolution of the profession of law teaching and the course of academic legal thinking in the twentieth-century United States. . . . Schlegel has written a thoroughly researched, perceptive, and provocative book that adds immeasurably to our understanding of legal realism and the culture of American law teaching. It should become a foundation stone for subsequent discussions of twentieth-century American legal thought and education."—Journal of American History

"Makes a valuable contribution to our understanding of American legal realism by recasting the 'ideas in context' approach to intellectual history. . . . Schlegel's study of these professors' and these institutions' engagement with social science is comprehensive and penetrating, providing a wealth of factual information and solid analysis."—American Historical Review

"Exceptionally thorough research, a riveting narrative style, some humor along the way, and a host of stimulating asides and suggestions for future work."—G. Edward White, University of Virginia

"Schlegel is the first historian of Legal Realism—the most influential movement of twentieth-century American legal thought—to recognize that the Realists were neither primarily legal philosophers nor theorists of the judicial role, but rather scholars who hoped to enlist social science in the cause of legal and social reform. Schlegel's story is basically a tragic one, of noble ambitions brought to shipwreck on opposition and indifference; but there are many comic moments too, and the book is great fun to read. At last we have the story of Realism as the Realists themselves would have written it—the story of who exactly the Realists were and the work they actually did."—Robert W. Gordon, Stanford Law School

June Starr
In AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE the legal historian and law professor, John Henry Schlegel reveals early attempts in the 1920s and 1930s to introduce science into the research agendas and curricula of American law schools. In doing so he provides empirical law researchers a longer intellectual history suggesting, in additional to Willard Hurst and Harry Kalven, some new heros -- Charles E. Clark, Walter Wheeler Cook, and Underhill Moore. The book focuses on an explanation of why law did not become a scientific study in the twentieth-century sense of science, notably as an empirical inquiry into a world "out there," as did all the other disciplines in American academic life that formed in the late nineteenth and early twentieth centuries. The answer? "Law already saw itself as practicing a science, a "legal science." During years on either side of the turn of the century the academic practitioners of legal science passed law off as a species of empirical study by making the "thoroughly misleading, but intensely revealing, assertion that the law library was the law professor's laboratory and by arguing for the politically neutral, and so objective,' results of the appropriate juridical method" (p.1). There has been a mistaken assumption that Legal Realism was jurisprudence. Schlegel sets the record straight by examining the empirical work which was central to the lives of several of the leading Realists -- Thurman Arnold, Charles E. Clark, Walter Wheeler Cook, William O. Douglas, Underhill Moore, Herman Oliphant, and Wesley Sturges. The work of the Realists, their attempts at reform of the law school curricula and their empirical projects are presented in detail, and are critiqued as Schlegel shows us that intellectual history must be much more than a discussion of ideas. Intellectual history must relate to people and the places where they exchange ideas. He is interested in the communication among and between scholars, in particular institutional settings, and how the personalities, institutional backing and financial support shape the intellectual endeavor. Thus, part of the narrative which Schlegel relates is how clusters of individuals worked (or worked badly) together at law schools in brief periods as certain law professors tried to develop law and social science inquiry. Schlegel concludes by telling us that in addition to taking a fresh look at the work of the Realists, the book is "intended to be a contribution to intellectual history generally because it attempts to show what it is to be an intellectual in America in the twentieth century." The book succeeds at all levels remarkably well. In part Schlegel wrote the book as a response to the scholars who view legal "Realism as a jurisprudence or who [do] not follow through on alternative understandings of Realism." In contrast Schlegel asserts that the Realists can best be understood by knowing what their views and their work was about. Schlegel considers the careers of Cook, Moore, and Powell at Columbia Law school where they attempt to educate their dean, Harlan Fiske Stone, regarding their dissatisfactions with American law and legal education. By 1926 they were undertaking a huge study of curriculum reform. Meanwhile, the Harvard Law school had announced an endowment drive, in part to provide for research professorships. At Yale law school under Dean Swan, Arthur Corbin, Charles E. Clark, and Cook, who had left Columbia, were also proposing reforms in legal education. As reform heated up, Cook moved on to Johns Hopkins University to fund a law school or a research and graduate teaching institution where he could continue writing in two areas -- the scientific method and conflict of laws. As Columbia law school engaged in Deanship fighting, Hopkins snatched up three individuals -- Oliphant, Marshall and Yntema -- who, with Cook formed the Institute of Law, which was active but short-lived (1928-1933). During this short period of turmoil and uncertainty in funding, a surprising amount of research was completed. There were four publications from the Maryland study of divorce litigation; the New York study produced several articles -- a study of the day calendars, of the public costs of justice, and an additional study of the English Kings Bench Masters and English interlocutory practice. From the Ohio study came a volume of material -- six studies in each of two years. Some of these studies involved criminal litigation, divorce litigation, appellate lawsuits, two were on minor trial courts, and there was a small history of the judicial system of Ohio from 1787 to 1932. Other articles concerned receiverships, waiver of jury trial, the public cost of justice, the lower courts, and finally there were new studies on divorce. Despite this out burst of energy, the Institute of Law at Johns Hopkins ultimately failed because of lack of funding. Throughout the text Schlegel focuses on the empirical research undertaken by various law professors: Clarke's interest in law reform and his work at Yale on civil procedure in civil and on criminal courts. Clarke also conducted empirical research on losses by, and recoveries of victims of auto accidents. Also at Yale law school Douglas conducted empirical work on bankruptcy laws, and he enlisted for awhile two real social scientists, Emma Corstvet and Dorothy Swaine. We learn of Moore's work on the law and practice of commercial banking and the behavior of citizens in response to parking and traffic rules and regulations. Schlegel's discussion of research is interwoven with the debates, the struggles, and the ability to attract social scientists to participate in discussions and projects. As the projects progressed, there was a growing lack of synergy, the falling apart of the projects and the dissipating of intellectual energy. Schlegel tells us of the funding, lots of money but not over a long time, and what multiple factors caused its withdrawal. The last chapter tells of quickening activity in law and social science: the Jury Project at University of Chicago under Harry Kalven and Hans Zeisel, the activities of the Walter E. Meyer Research Foundation that funded empirical legal research starting in the late 1950s, and the work of the Russell Sage Foundation that funded law and social science programs at Yale Law School, Northwestern University, University of Denver Law School University of Wisconsin Law School, and Boalt Hall Law School at the University of California, Berkeley. Brooding in the background is the omnipresence of those traditional legal academics who quietly, but firmly, maintained a notion of professional role and thus of appropriate activities. As Cook and Moore leave the tall grass prairie universities where they started their careers as law professors, they brought back to the elite eastern law schools deviant notions of what it was to be a law professor. The traditional law professors were committed to the understanding that legal education was focused solely on norms, against which the Realists who were engaged in empirical research reacted -- indeed, against which the Realists defined themselves and so defined themselves for us. Seeing that ground, if only in negative outline, begins to show the contours of the legal academy then and, realistically, now. In addition to critiquing the early empirical studies of law, Schlegel hopes to make the reader experience why legal education developed as it did, and why social science failed to be established in law school education. To do this he presents the intellectual history of the Realists as "ideas and people hopelessly intermingled" . . . because to his mind "ideas and people are hopelessly intermingled." He also presents the "doing and thinking" of the young law professors engaged in empirical research in the 1920s and 1930s in which the doing seemed to overwhelm the thinking and, thus, in which the actual results, the traditional "stuff" of intellectual history, were far less important than one might otherwise expect. The Realists worked essentially at Columbia and Yale law schools, and at the newly founded Law Institute at John Hopkins University. The chapter on post-world war II Realists discusses the Chicago jury study, which was actually a series of projects, and a number of individual studies funded by the Walter E. Meyer Research Institute of Law, which have become classics in the Law and Society field, such as Joel Handler's study of lawyers, Stewart Macaulay's study of automobile dealers and their manufacturers, Maurice Rosenberg's study of the pretrial conference and delay in personal injury litigation, H. Lawrence Ross's SETTLED OUT OF COURT, and Jerome Skonick's JUSTICE WITHOUT TRIAL. The only real success story where empirical research was embraced by a large number of the faculty was at Wisconsin law school, where apparently today close to half the faculty are engaged in empirical research. Willard Hurst's influence there and on legal history in general has been immense, but we are not told about his projects, colleagues and students. Likewise, Law Professor Stanton Wheeler's program in Law and Social Science at Yale law school, which trained a number of current law and society researchers, and the Law and Modernization program at Yale receive only a mention. In a book on the Realists it would have been instructive to have a "bridging" chapter on these three clusters of empirically-minded law professors and their students, since they are a link between the Realists and the current Law and Society Association members who work in a law school setting. Perhaps, because Schlegel's narration stops about 1970, he will relate this story in a future publication. An ironic outcome of the movement to bring social science into legal studies is that the most fertile ground has been in undergraduate and graduate programs on Liberal Arts campuses, especially those without a law school. Schlegel has a lively writing style, easy to read, and deeply engrossing. The book is full of marvelous antidotes, delicious metaphors, and bon mots. He gives us glimpses into his main protagonists' lives, reporting on their personalities, their personal styles, and their disappointments. We learn that Oliphant was a wild man, and that by the late 1930s and early 1940s Moore's work was unintelligible to both social scientists and law school colleagues, because it was "drawn to a nonexistent paradigm within a nonexistent culture" (p. 237). The books is richly textured, and so full of interesting stories, that a reviewer can hardly begin to capture the flavor. For example, we learn that in the early 1930s at Yale law school Thurman Arnold (SYMBOLS OF GOVERNMENT) and Edward S. Robinson, a Yale psychologist, taught a law and social science seminar, called "the cave of the winds." Arnold emphasized the irrationality of the symbols of government, pointing to law, the Congress, and the Supreme Court -- all symbols which most citizens treat as meaningful in political discourse. Robinson attacked the legal profession for "its obsession with rules and certainty" (p.19). In the concluding chapter Schlegel tells us that although he does not consider himself a postmodernist, he hopes we read his text "in a deeply postmodern way" (p.261), for, he has presented a different history of the Realists and he has offered us that history in a different kind of recounting of events. Schlegel passionately believes that previous intellectual history has been wrongly presented as merely the history of ideas. What ought to be discussed is which people working together (or apart) on what ideas at particular times in certain places. Furthermore, Schlegel wishes us to read his book to understand the dilemmas of "what it is to be an intellectual in America in the twentieth century" (p. 259). He fears some scholars may try to dismiss his work as a mere example and not a particularly representative one at that (p.260), because the discipline of law is not as developed as say sociology. But it would be hard for anyone who reads this book through to dismiss it. Furthermore, I think Schlegel's readers will take his point when he says: Let us simply stop the pretense that it is the dance of reason that we chronicle in intellectual history, if only in the name of more accurately representing the thinkers of the past as that humanistic ideal -- people trying their best to get from Monday to Tuesday in as honorable a job as they have managed to find. Let us stop looking for the dance of reason and record the dance of life (p.261). This is a masterful study. John Schlegel feels passionately about the lack of introduction of empirical inquiry into law school education, and he engages his reader in his dialogue. Every law and social science researcher should read the book, since, like therapy, it makes us feel better regarding the struggle in our own lives to achieve integration of intellectual endeavor, and a place on a faculty which creates positive working conditions. It is a brilliant book, and a wonderful "read." References: Arnold, Thurman. 1935. SYMBOLS OF GOVERNMENT. New Haven: Yale University Press. Skolnick, Jerome H. 1966. JUSTICE WITHOUT TRIAL New York: John Wiley & Sons Ross, H. Laurence. 1970. SETTLED OUT OF COURT. Chicago: Aldine Publishing Co.
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Product Details

  • ISBN-13: 9780807857533
  • Publisher: The University of North Carolina Press
  • Publication date: 1/31/2011
  • Series: Studies in Legal History Series
  • Edition description: 1
  • Edition number: 1
  • Pages: 432
  • Product dimensions: 5.90 (w) x 8.90 (h) x 1.20 (d)

Meet the Author

John Henry Schlegel is professor of law at the State University of New York at Buffalo.
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Table of Contents

Introduction: Whys and Wherefores 1
Prologue: As the Story Is Usually Told 15
Ch. 1 Legal Science, Social Science, and Professional Identity 23
Ch. 2 Empirical Legal Research at Yale: Charles E. Clark and William O. Douglas 81
Ch. 3 Empirical Legal Research at Yale: The Singular Case of Underhill Moore 115
Ch. 4 Empirical Legal Research at Johns Hopkins: Walter Wheeler Cook and His Friends 147
Ch. 5 Empirical Legal Research since World War II: The Reinvention of the Square Wheel 211
Afterword: On the History of Intellectuals, Including Lawyers 259
Biographical Appendix 263
Notes 271
Bibliography 377
Index 403
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