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.
