CHISELING LEGAL TRADITION

By Sarah Baringer Gordon, Professor of Law and History

1. SWORDNOTE: Assistant Professor of Law, University of Pennsylvania Law School. The author wishes to thank Dean Colin Diver, Acting Dean Stephen Burbank, and Associate Director of Development Carol Weener, for their interest and generous support of this project; Professors A. Leo Levin and Susan Sturm for helpful suggestions; and University Archives Director Mark F. Lloyd, Lecturer in Historic Preservation & Urban Studies George Thomas, Biddle Law Library's Rare Books Librarian Cynthia Arkin, and Reference Librarian Catharine Krieps, and Melissa J. Homestead for research assistance.

2. "The Law Department," Catalogue of the University of Pennsylvania, 1879-1880 96-99 (1879).

3. For the movements of the law school, including its stay in College Hall in the 1870s and 1880s, see Margaret Center Klingelsmith, "History of the Department of Law of the University of Pennsylvania," The Proceedings at the Dediction of the New Building of the Department of Law, Febuary 21st and 22nd, 1900, 213-49 (George Erasmus Nitzsche, comp. 1901) [hereinafter Proceedings].

4. Although in 1888, the course of study was extended to three years, Klingelsmith, "History of the Law School," supra note 3, at 233, the law school was still a local institution, an adjunct to the training students received under their "preceptors" in law offices. See William R. Johnson, "Apprenticeship and the Law School: A Harmonious Arrangement," in Schooled Lawyers: A Study in the Clash of Professional Cultures 42 (1978). Conservative lawyers in Philadelphia opposed even such limited outside training as provided by the "law department," as it was known. The school was re-opened in response to the demands of law clerks in 1850, part of a gradual transition of legal practice, according to some scholars, from a more aristocratic to a solidly middle-class profession. Gary B. Nash, "The Phildelphia Bench and Bar, 1800-1861," 8 Comparative Studies in Society and History 203, 207-08 (1965); Lawrence Friedman, A History of American Law, 606-08 (2d ed., 1985).

5. "Remarks of Mr. William Draper Lewis," Law Department of the University of Pennsylvania, A Very Pleasant Evening, 33 (1934).

6. For basic biographical information on Lewis, see Stephen Botein, "William Draper Lewis," supplement 4 Dictionary of American Biography 490 (1974); Obituary, New York Times, 3 September 1949, p. 13, col. 1; Owen J. Roberts, "William Draper Lewis," 98 Penn. L. Rev. 1 (1949); George Wharton Pepper, "William Draper Lewis," 98 Penn. L. Rev. 4 (1949); Augustus N. Hand, "William Draper Lewis," 98 Penn. L. Rev. 8 (1949).

7. On the professionalization of legal education at the end of the nineteenth century, see Robert Stevens, Law School: Legal Education in America from the 1850's to the 1980's (1983); John Henry Schlegel, "Langdell's Legacy; or The Case of the Empty Envelope," 36 Stan. L. Rev. 1517 (1984), and "Between the Harvard Founders and the Legal Realists: The Professionalization of the American Law Professor," 35 J. Legal Ed. 311 (1985); James Bradley Thayer, "The Teaching of English Law at Universities," 9 Harv. L. Rev. 169 (1895); Oliver Wendell Holmes, Jr., The Use of Law Schools (1886).

8. William Draper Lewis, ed., Blackstone's Commentaries on the Laws of England, 4 vols. (1897).

9. On the English focus of the design, see Evening Telegraph, 20 December 1898; Public Ledger, 9 December 1898.

10. "Department of Law," Catalogue of the University of Pennsylvania, 1899-1900 234 (1899).

11. Botein, Dictionary of American Biography, supra note 6, at 490.

12. On the division of learning into distinct academic departments in the second half of the nineteenth century, see Dorothy Ross, The Origins of American Social Science (1991); Edward Potts Cheyney, The History of the University of Pennsylvania, 1740-1940 (1940).

13. On the perceived importance in both England and America of relocating legal education to university settings from practitioner-focused night schools, see "Letter of Frederic William Maitland," Proceedings, supra note 3, 89-92. On the liberal education of lawyers before the advent of professional law schools, see Robert A. Ferguson, Law and Letters in American Culture (1984).

14. "Final Report on Proceedings of the Dedication of the New Building," in 5 Record Book, University of Pennsylvania Law School 5 (1899-1900).

15. For other aspects of the role of tradition in Philadelphia at the turn of the century, see David Glassberg, "Public Ritual and Cultural Hierarchy: Philadelphia's Civic Celebrations at the Turn of the Century," 107 Penn. Mag. of Hist. and Biog. 421 (1983); Max Page, "From 'Miserable Dens' to the 'Marble Monster': Historical Memory and the Design of Courthouses in Nineteenth-Century Philadelphia," 119 Penn. Mag. of Hist. and Biog. 299 (1995). For general treatments of the role of invented tradition in American society, see Michael Kammen, Mystic Chords of Memory: The Transformation of Tradition in American Culture (1991); David Glassberg, American Historical Pageantry: The Uses of Tradition in the Early Twentieth Century (1990).

16. This emphasis on tradition as the justification for even revolutionary retooling of institutional structures has a venerable hertiage in American legal and political thought. See, for example, John M. Murrin, "The Legal Transformation: The Bench and Bar of Eighteenth-Century Massachusetts," in Stanley N. Katz & John M. Murrin, eds., Colonial America: Essays in Politics and Social Development 540 (3d ed., 1983).

17. For analyses of the evolution of historical consciousness, see Dorothy Ross, "Historical Consciousness in Nineteenth-Century America," 89 Am. Hist. Rev. 909 (1984); Hayden V. White, "On History and Historicisms," From History to Sociology: The Transition in German Historical Thinking, Carlo Antoni, ed., xv (1959).

18. See Robert W. Gordon, "Historicism in Legal Scholarship," 90 Yale L.J. 1017 (1981); Morton J. Horwitz, "The Conservative Tradition in the Writing of American Legal History," 17 Am. J. Legal Hist. 275 (1973).

19. See Gordon, "Historicism in Legal Scholarship," supra note 17, at 1028-30. Originalism is, of course, conditioned in some sense by historicism. If legal meaning is fixed by a particular moment in time, that moment becomes by definition worthy of historical investigation. Yet the corollary of such a theory -- that meaning is cemented as if by supra-historical superglue -- is a violation of historical consciousness (which is premised on the difference of the past from the present). For the originalist, the legal past not only conditions (even dictates to) the legal present, but is at base identical to the legal present, because meaning is static.

20. Peter Novick, That Noble Dream: The "Objectivity Question" and the American Historical Profession 99 (1988). For a study in presentist legal analysis by an early legal historian, see James Barr Ames, "Law and Morals," 22 Harv. L. Rev. 97 (1908) (arguing that legal development has progressed over centuries "in harmony with moral principles"). Ames, Dean of Harvard Law School, also gave a speech at the opening of Lewis Hall, predicting the law professors' power would grow through the building of schools like Penn's, which would attract the most able lawyers to teaching. James Barr Ames, Proceedings, at 25-44.

21. "Final Report," in 5 Record Book, supra note 14, at 573.

22. For the role of Justinian and the Roman law code, see J.A.C. Thomas, The Institutes of Justinian: Text, Translation, and Commentary (1975); J.B. Bury, 2 History of the Roman Empire from the Death of Theodosius I to the Death of Justinian (1923).

23. See 6 Record Book, supra note 14, at 6.

24. Anna M.D.W. Stirling, Coke of Norfolk and His Friends (1908); James R. Stoner, Jr., Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism (1992); Stephen D. White, Sir Edward Coke and "The Grievances of the Commonwealth," 1621-28 (1979); John H. Baker, "Sir Edward Coke," in A.W.B. Simpson, ed., Biographical Dictionary of the Common Law, 117 (1984).

25. Hedley Bull, et al., eds., Hugo Grotius and International Relations (1990); Gerahrd Reintanz, "Hugo Grotius und seine Zeit -- Ein datenmassiger Ueberblick," in Friedrich Elchlepp et al., eds., Hugo Grotius, 1583-1645, 7 (1983); "Hugo Grotius," 5 Encyclopaedia Britannica 514 (1990).

26. Ferguson, supra note 13, at 4.

27. It is fair to say that Blackstone was probably more important in America than in England. For biographical and substantive treatments of Blackstone, see Daniel J. Boorstin, The Mysterious Science of the Law (1941); "Sir William Blackstone," 2 Dictionary of National Biography 595-602 (1908).

28. William Draper Lewis, ed., Great American Lawyers: A History of the American Legal Profession (1907-1909). For biographies of the figures on the medallions mentioned above, see Horace Stern, "William Tilghman," 2 Great American Lawyers 145; William Schofield, "Joseph Story," 3 Great American Lawyers 121; Everett Pepperrell Wheeler, "Daniel Webster," 3 Great American Lawyers 287; Charles Chauncey Binney, "Horace Binney," 4 Great American Lawyers 195

29. For an analysis of such traditional notions of the value of biography, see Eric Homberger and John Charmley, Introduction to The Troubled Face of Biography, ix (Eric Homberger and John Charmley, eds., 1988), Janet Malcolm, Annals of Biography: The Silent Woman, New Yorker, 23 August 1993, at 84; Virginia Woolf, The Art of Biography, in The Death of the Moth and Other Essays 187 (1942).

30. William Draper Lewis, "John Marshall," in 2 Great American Lawyers, supra note 27, at 311.

31. Id., at 313-351.

32. On the case method as developed by Dean Christopher Columbus Langdell at Harvard, and its popularity at the turn of the twentieth century, see sources cited in note 7, supra.

33. On the movement to integrate social science research into legal theory and scholarship, see Roscoe Pound, "The Scope and Purpose of Sociological Jurisprudence," 24 Harv. L. Rev. 591 (1911); Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (1992); Edward A. Purcell, The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value 77-94 (1973); Sarah Barringer Gordon, "The Creation of a Usable Judicial Past: Max Lerner, Class Conflict and the Propagation of Judicial Titans," 70 N.Y.U.L. Rev. 262, 272-76 (1995).

34. "Address of Mr. William Draper Lewis," Proceedings, supra note 3, at 17.

35. For such a technocratic vision, see Oliver Wendell Holmes's essay, "The Path of the Law," in Max Lerner, ed., The Mind and Faith of Mr. Justice Holmes: His Speeches, Essays, Letters, and Judicial Opinions (1943).

36. Lewis received a Ph.D in economics from Penn in 1891, at the same time that he earned his law degree. Obituary, supra note 5. Lewis's dissertation, entitled Our Sheep and the Tariff, blended (according to his protege and colleague, George Wharton Pepper) political economics and sociology in ways that Lewis employed throughout his legal career. "William Draper Lewis," supra note 5, at 4.

37. William Draper Lewis, Proceedings, supra note 3, at 18.

38. Id., at 19-21. For Lewis's emphasis on kindness, and the great fondness with which he was regarded by his peers and proteges, see the collection of eulogies at 98 Penn. L. Rev. 1 (1949).

39. For details of the unsuccessful campaign, and the meeting with Theodore Roosevelt, who persuaded Lewis to withdraw in favor of the Democratic candidate, see Botein, "William Draper Lewis," supra note 5.

40. Herbert F. Goodrich & Paul A. Wolkin, The Story of the American Law Institute, 1923-1961, 3-5 (1961).

41. N.E.H. Hull, "Restatement and Reform: A New Perspective on the Origins of the American Law Institute," 8 Law and History Review 55, 56 (Spring 1990).

42. Lewis did not hesitate to condemn practitioners: "If, as a profession, we are awake to our failure to perform our public duties, it is the small class of men who are devoting their lives to the legal teaching who must point the way." Quoted in Jerold L. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America 82 (1976). Lewis's theory that intellectual acumen would lead to progressive reform, of course, seems as naive as his theory that the example of greatness in the past would produce greatness in the future.

43. Scott v. Sandford, 60 U.S. (19 How.) 393 (1957). See Don E. Fehrenbacher, The Dred Scott Case: Its Signficance in American Law and Politics (1978); Edwin S. Corwin, "The Dred Scott Decision, in the Light of Contemporary Legal Doctrines," 8 Am. Hist. Rev. 52 (1911). For biographical information on Taney, see Carl Brent Swisher, Roger B. Taney (1935); Samuel Tyler, Memoir of Roger Broooke Taney (1872). The biography of Taney in Great American Lawyers, written by Professor William E. Mikell of the Law School, is an ardent defense of Taney, and an attack on his detractors. "Roger Brooke Taney, " 4 Great American Lawyers 77 (1908).

44. The quote is from Robert M. Cover. For an analysis of Cover's theory of the values of legal biography, as well as for the above quote, see Tanina Rostain, "Tribute to Robert Cover," 96 Yale L.J. 1713, 1715 (1987).

45. Recent biographies of Lincoln include David Herbert Donald, Lincoln (1995) and Mark E. Neely, Jr., The Last Best Hope of Earth: Abraham Lincoln and the Promise of America (1993).

46. The single most comprehensive treatment of all aspects of the Civil War era is James M. McPherson, Battle Cry of Freedom: The Civil War Era (1988). For a treatment of constitutional change, see Harold Hyman and William Wiecek, Equal Justice Under Law: Constitutional Development, 1835-1875 (1982). For Lincoln's career as a lawyer, see William Eleroy Curtis, "Abraham Lincoln," 5 Great American Lawyers 459 (1908).

47. The most poignant example of Lincoln's use of the past to explain the present is his Gettyburg address, delivered at the battlefield in Pennsylvania. For analysis of Lincoln's transformative address, see Garry Wills, Lincoln at Gettysburg: The Words That Remade America (1992).