Book Review of American Legal Realism and Empirical Social Science

Book Review

Law and History Review, 1996.

John Henry Schlegel, American Legal Realism and Empirical Social Science. Durham, N.C.: University of North Carolina Press, 1995. xii + 418pp.

John Henry Schlegel’s long awaited history of American Legal Realism is a book with multiple agendas. First, Schlegel wants to offer a distinctive interpretation of Legal Realism. In his view, Realism should not be approached in terms of familiar jurisprudential debates about legal or factual determinacy; nor should it be viewed as embodying a progressive attack on the formalism of classical legal thought. Instead, for Schlegel, the most important and most neglected point about Realism is that the Realists valued science and tried to engage in empirical social science research. He thus focuses almost exclusively on the work of a handful of scholars who tried to approach and study law as a science: Walter Wheeler Cook, Underhill Moore, Charles E. Clark, William O. Douglas, Leon Marshall, Herman Oliphant, and Hessel Yntema. One result of this strategy is that some of the most familiar names associated with Realism– for example Jerome Frank– are hardly discussed at all. Indeed, in Schlegel’s account of American Legal Realism, Karl Llewellyn turns out to be much less central to the story than his second wife, Emma Corstvet, a social scientist who worked with Underhill Moore at Yale during the early thirties.

Schlegel is unconcerned that his canon of Realists is idiosyncratic, for, as he well understands, the choice of who is enshrined in that canon turns very much on the points one wants to make about the history of American law and legal education. For example, Morton Horwitz’s recent discussion of Realism prominently features Robert Hale and Felix Cohen, who were instrumental in developing the critique of classical legal thought that Horwitz sees as one of Realism’s lasting contributions.

Schlegel’s canon of Realists meshes well with the second central theme of his book– the continuing and problematic relationship between American legal scholarship and empirical social science. According to Schlegel, the Realists are important because they were the first to attempt (and fail at) reorienting the work of legal scholars towards social science. The bulk of Schlegel’s book is a detailed account of the successes and failures of different conceptions of legal and empirical social research.

For example, Schlegel argues that Walter Wheeler Cook was greatly taken with John Dewey’s vision of science. Yet Cook’s socialization as a law professor led him to interpret Dewey’s conception in ways that did not threaten his professional identity. Hence for Cook the scientific study of law could be about the organization and analysis of doctrinal categories, but not the empirical study of the legal system.

Charles E. Clark and William O. Douglas, on the other hand, attempted to use empirical research to further a progressive social agenda. But they discovered that such research proceeded much too slowly to suit the needs of progressive reformers. Moreover, when they discovered facts that were at odds with the preconceptions of the elite bar and legal progressives, the latter dismissed them or ignored them, and funding for the research dried up. Although Clark in particular learned a considerable amount about empirical social science and about the legal system through his studies, he eventually turned to a more lawyerly project of drafting the new Federal Rules of Civil Procedure. Douglas likewise tired of his projects and moved into government work.

The Realist most devoted to following the scientific ideal, regardless of its relevance to reform, was Underhill Moore, and it seems clear that Schlegel has the greatest sympathies for his lonely crusade. Moore found himself isolated from his fellow law professors because of his scientific concerns. But he was no better treated by empirical social scientists, who found his methods primitive and considered him an amateur. In Schlegel’s hands Moore becomes an apt symbol of the problem of the interdisciplinary law professor– trapped between two conflicting senses of professional identity and welcome in neither. Schlegel shows how Moore gradually discovered that his quest for mathematical precision and empirical certainty in studies of banking practices and parking studies involved situations too complicated to be comprehended by his methods. He does not discuss why Moore did not turn to the obvious alternative– the more anthropological “soft empiricism” that has been used with some success by present-day scholars, and which would have been more compatible with Moore’s insights about law’s dependence on custom. From Schlegel’s description, however, one assumes that Moore was too caught up in a particular vision of empirical social science to credit such a methodology.

Schlegel’s third and final theme is a claim about how one should write intellectual history– as a history of intellectuals and the accidents and contingencies that led them to take their peculiar intellectual paths. To this end, Schlegel discusses the methodological, research, administrative and funding problems met by the central characters of his story in almost compulsive detail, hoping to show us that the history of Legal Realism is comprehended and explained by these contingencies. Yet this third theme is in some tension with the first two. By the end of the book, Schlegel has returned to overarching claims about the primacy and ideological force of law professors’ professional identity, which Cook and Moore internalized while teaching in midwestern law schools before coming to Columbia and Yale. This broader professional and ideological explanation for the failures of Realism does not seem to depend on the contingencies that Schlegel stresses in the middle parts of the book, and even seems to resemble the sort of intellectual historicizing Schlegel warns us against.

But these are mere quibbles about a work of genuine importance. Schlegel has rightly focused on an aspect of Realism too little recognized by lawyers who write about the subject. Indeed, his point about the disciplining influence of professional identity explains why law professors would tend to interpret Realism in terms of jurisprudential claims rather than social science. Legal Realism has always been a kind of intellectual Rorschach test for American lawyers, symbolizing different things to different people. In the future, however, no one who writes about it can neglect Schlegel’s distinctive take.

J.M. Balkin
Yale Law School