Tuesday, November 11, 2014

Attacking Langdell's Jurisprudence

There has been a great deal written recently on Langdell’s pernicious influence on legal education.  However, Christopher Columbus Langdell’s influence went beyond legal education.  His ideas also affected how scholars viewed law; it affected the basis of jurisprudence.

Dennis Patterson has recently written an article on the harmful effects of Langdell’s influence on jurisprudence and how contemporary jurisprudence can escape it.

What is at Stake in Jurisprudence?

“Dean Hellman, Mrs. Quinlan, distinguished faculty, students, and friends of the Oklahoma City University School of Law. My topic this afternoon is the subject of jurisprudence. As a subject of study, jurisprudence occupies a unique place in the law school curriculum. Jurisprudence is simultaneously both its own subject matter and an aspect of every area of law. We are all familiar with phrases such as ‘criminal law jurisprudence’ and ‘the jurisprudence of remedies.’ When it is mentioned in these ways, ‘jurisprudence’ identifies the most general aspects of legal doctrine.”

Here are some excerpts:

“The first thing we need to do is bury Langdell. Yes, I told you earlier that Langdellian formalism is dead as legal philosophy. While that is true, the picture of law given to us by Langdell lives on. Langdell was, at bottom, a reductionist. He thought legal argument was reducible to a few principles that lie beneath the surface of law and do all the normative work. In the same spirit, one need only look at the work of economists, critical legal theorists, and even some forms of analytic jurisprudence to see the same aspiration at work. Reductionism is a deep-seated affliction of the academic soul. While its most noticeable form is classic Marxism and the theory of dialectical materialism, the explanatory picture offered by modem day legal reductionists is no different. The lesson of Wittgenstein is that the task of philosophy is not to theorize. The task of philosophy is to gain a clear view of how, in our practices, we go about the business of making assertions and adjudicating claims. For jurisprudence the lesson is clear: everything we need for our work lies on the surface.”

“There is no algorithm for the correct employment of forms of argument. I am fond of saying that in any given case one form or another is ‘actuated.’ When it comes to education and legal argument, the task of law professors is clear: teach students how to use these forms to make good legal arguments.”

“There is a sense in which my conception of jurisprudence is consistent with Langdell's project. I do think law exhibits unity and structure, but it is a unity and structure different from that to which Langdell aspired.”

“I want to suggest that for we lawyers, ‘progress’ in law should be measured not by the degree to which we are able to force the law to conform to our preconceptions, be they political or otherwise. Rather, I want to suggest that progress in the law comes when we reconfigure the vocabulary of law in ways that allow us to see more clearly how our current notions might be recast to give us a more satisfactory account of legal practice.”

My question is: if the jurisprudential basis of Langdell’s approach to legal education is faulty, why are law schools still using it as the basis of legal education?  Can modern science advanced if it uses a Ptolemaic conception of the universe?

(Scott Fruehwald)


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