JURISPRUDENCE

Like every other American institution, legal theory and practice approached a gathering crisis in the late-nineteenth century. The crisis—the birth of "the modern"—was precipitated by a series of profound, interrelated transformations, both material and intellectual. The decades between 1870 and 1900 witnessed a sudden flowering of technological innovation; the "closing of the frontier" and the shrinking of the continent; the triumphant emergence of the modern industrial corporation and the concomitant creation of an increasingly well-defined laboring class; a dramatic expansion and fragmentation of the national population through immigration; and the growth of massive urban centers, densely packed with these immigrants and laborers and with emancipated slaves and their children and grandchildren. Jurisprudence negotiated this landscape of change in various ways but at first by appearing to move simultaneously in two contradictory directions.

CONSERVATIVE COURTS AND PROGRESSIVE LAWYERS

On the one hand, the courts themselves (and particularly the U.S. Supreme Court), emerging from the relative juridical confusion that followed the Civil War, tended toward detached traditionalism—as in, for example, Plessy v. Ferguson (1896), which established the durable racial doctrine of "separate but equal" through an assembly of arguments for states' rights, the separation of legal and social values, and the authority of "the established, usages, customs, and traditions of the people" (Plessy v. Ferguson, p. 550). "The argument [for racial integration] . . . assumes that social prejudices may be overcome by legislation," wrote Justice Henry Billings Brown (1836–1913) for the majority. "We cannot accept this proposition. If the two races are to meet on terms of social equality, it must be the result of natural affinities, a mutual appreciation of each other's merits, and a voluntary consent of individuals" (Plessy v. Ferguson, p. 551).

Increasingly, the courts reaffirmed an old idealistic view of law, appealing to the principles of absolute individual rights and their genesis in "natural law," English common law, and John Locke's political theory. Such conservative individualism could lead to rejections of states' rights arguments, as it did in the notorious case of Lochner v. New York (1905), which struck down state legislation limiting work hours that employers could demand of employees. Justice Rufus Wheeler Peckham (1838–1909), writing for the majority, framed the problem in purely Lockean terms as "a question of which of two powers or rights shall prevail, the power of the state to legislate or the right of the individual to liberty of person and freedom of contract" (Lochner v. New York, p. 57) and decided in favor of the individual. Lochner initiated a string of conservative Court decisions in the 1910s and 1920s in which the application of classical individual rights doctrines resulted, paradoxically, in the balance of justice tipping heavily in favor of business management and against individual employees. (An interesting exception, and one which suggests the extent to which the wounds of the Civil War still festered, is Bailey v. Alabama [1911], in which the Supreme Court invoked the Thirteenth Amendment, which outlawed slavery, to reject a state law allowing imprisonment for nonfulfillment of contract.)

On the other hand, and during just these years, a growing body of lawyers and law professors, sensing seismic cultural change around them and believing that a jurisprudence rooted in the seventeenth and eighteenth centuries would surely prove inadequate to the twentieth century, called for full-scale reform of the American legal system and its paradigms. The reform movement's first great spokesman was Roscoe Pound (1870–1964), the young dean of the University of Nebraska Law School. In 1906 Pound startled the American Bar Association (ABA) at its annual meeting by delivering the address "The Causes of Popular Dissatisfaction with the Administration of Justice." His speech castigated his discipline for its deductive formalism, its cumbersome obsession with mechanical procedure, its old-fashioned individualism (out of step with the collective realities of modern society), and its lack of a productively flexible body of theory. Pound's ABA address started him on a path that led through increasingly prestigious professorial appointments to the deanship at Harvard Law School ten years later; it also introduced the great surge of legal thought that over the following thirty years self-consciously defined itself as "progressive" and later, more radically, as "realist," in sharp contradistinction to the orthodoxies that continued to dominate the post-Lochner Courts.

The pre–World War I legal reformers included Pound's Harvard colleague Felix Frankfurter (1882–1965), the Boston lawyer Louis Dembitz Brandeis (1856–1941), and the New York judge Benjamin N. Cardozo (1870–1938), all three of whom would become Supreme Court justices instrumental in the fading of Lochnerism and the enacting of Franklin Delano Roosevelt's New Deal. In different ways they shared and elaborated Pound's complaint: that law had become an empty shell of language and concepts, that it proceeded through mechanical deduction from unproven assumptions, and that it assumed for itself an impossible neutrality and a dubious separation from historical reality. Law had become a complex, self-serving religion. The legal realist Jerome Frank (1889–1957) later would summarize the assumptions of mainstream legal practice in his iconoclastic Law and the Modern Mind (1930), as a kind of Platonism:

Law [in "the conventional view"] is a complete body of rules existing from time immemorial and unchangeable except to the limited extent that legislatures have changed the rules by enacted statutes. Legislatures are expressly empowered thus to change the law. But the judges are not to make or change the law but to apply it. The law, ready-made, pre-exists the judicial decisions. (P. 32)

In The Transformation of American Law 1870–1960 (1992), the legal historian Morton J. Horwitz terms these assumptions "Classical Legal Thought" (p. 3). Against such sacred remoteness the reformers counterpoised their goal of an inductive jurisprudence, particularized, responsive to historical and material experience. In The Nature of the Judicial Process (1921), Cardozo put it in these words:

Statutes are to be viewed, not in isolation or in vacuo, as pronouncements of abstract principles for the guidance of an ideal community, but in the setting and the framework of present-day conditions, as revealed by the labors of economists and students of the social sciences in our own country and abroad. (P. 81)

Or, more memorably, "law never is, but is always about to be" (p. 126).

SOCIAL CRITICISM AND LITERATURE

Cardozo's fluid particularism had a legal and philosophical pedigree. It recalled Oliver Wendell Holmes's (1841–1935) famous liberal dissent in Lochner—"General propositions do not decide concrete cases" (Lochner v. New York, p. 76)—and the influential pragmatism of Holmes's contemporary William James (1842–1910), the Harvard philosopher and brother of the novelist Henry James; it also echoed a positivist tradition in British law leading back to John Austin (1790–1859) and Jeremy Bentham (1748–1832) in the early nineteenth century, which held that law existed in its operations and effects rather than in an ideal set of universal principles. Thus, progressive legal theory participated predictably enough in the general philosophical movement of Western thought toward a secular, scientific empiricism, a movement radically accelerated across the entire nineteenth century. But it also had to do, and perhaps mainly had to do, with a perception of broad social injustice—of, for instance, the paradoxical way in which Lochner's reliance on an individualist logic had apparently led inevitably to the oppression of individual workers. (Unsurprisingly, one of Pound's next major articles after his 1906 address was a direct attack in 1909 on the delusive notion of a symmetrical "liberty of contract," and his career's great unfulfilled project was the full articulation of what he called a "sociological jurisprudence.") The spectacular and easily observed (in fact unavoidable) inequities of a new corporate America divided into haves and have-nots, owners and workers, underlay progressive law. These disparities also inspired the burgeoning American labor movements from 1877 forward, muckraking journalism, the explicit literature of social criticism written by the late-nineteenth-century and early-twentieth-century writers, and the new science of sociology (whose literal subject matter was provided in the academic research of scholars like George Herbert Mead and Charles Horton Cooley and in the more activist urban work of Jane Addams).

Literary history reads most well-known turn-of-the-twentieth-century American writers as naturalists who dramatized the lessons of materialist determinism, from Charles Darwin and Herbert Spencer to Karl Marx—the new scientism of the late nineteenth century. They thus produced mechanically fatalistic narratives whose protagonists are struck down by the very nature of things, the impersonal forces that drive the indifferent universe. Such a reading seems generally correct. But it is important to recognize that these writers, like the progressive legal thinkers, responded to immediate urban and economic situations: they wrote specifically about a landscape of businesses, labor, and immigrants, from Upton Sinclair's (1878–1968) graphic chamber of industrial horrors in The Jungle (1906) to Lily Bart's refined fall into the "unpolished and promiscuous" underworld of working women in Edith Wharton's The House of Mirth (1905). Similar forces played upon a host of other fictional characters from the era: Maggie's and Hurstwood's descents through the working world in Stephen Crane's Maggie, A Girl of the Streets (1893) and Theodore Dreiser's Sister Carrie (1900); Dreiser's portrait of Charles T. Yerkes in The Financier (1912); Jack London's underworld of the laboring classes in The People of the Abyss (1903); Frank Norris's depictions of working-class immigrants in McTeague: A Story of San Francisco (1899) or of the railroads' stranglehold on farmers in The Octopus: A Story of California (1901). All of these reflected quite exactly the concerns that occupied contemporary jurisprudence over how to achieve justice in a new, often brutal socioeconomic order.

American literature, like progressive jurisprudence, became "sociological" in these decades, embedding itself firmly, in Cardozo's words, in "the framework of present-day conditions." It not only took for its own the subject matter of progressive legal theory, but it did so with a similar repudiation of neutrality or detachment, manifesting an outraged energy that sometimes blurred the lines of literature, journalism, and political activism. Dreiser became a communist late in his life; London and Sinclair embraced their own brands of socialism and ran for public office. And in their works the turn-of-the-twentieth-century writers consistently echoed the central themes that energized the crisis of legal theory: the failure of abstract tradition to achieve or sustain justice and the destructive attractiveness of individualism and its singular inadequacy as a paradigm for life in a collectivist world.

MODERNIST SKEPTICISM AND LEGAL REALISM

It is conventional to see the self-conscious next generation of American writers, the high modernists of the late 1910s and 1920s, as radically different from their progressive predecessors and largely silent on the great social issues of their time. Apolitical, detached, anti-didactic, they concerned themselves more with formal precision than with the messy particulars of social experience. This construction of modernism bases itself on various famous aphoristic formulas that achieved the status more or less of household names, including James Joyce's injunction to artistic "silence, exile, and cunning" (p. 247), T. S. Eliot's understanding of art as a "continual extinction of personality" (p. 247), and Archibald MacLeish's "A poem should not mean / But be" (p. 107).

But a literary sea change occurring around World War I is perhaps more legend than historical truth, part of a general myth of an elite, austere "high culture" deliberately cultivated by a few writers, editors, and critics. In fact, despite their occasional pronouncements suggesting otherwise, writers of the 1920s hardly disconnected themselves from political experience, nor did reformist literature cease. Dreiser, for example, simply went on working out his chosen issues of Social Darwinism against the backdrop of modern economic realities, publishing An American Tragedy in 1925. Sinclair continued to expose the exploitation of the working class in King Coal (1917), Oil! (1927), and Boston (1928)—the last a historical novel about the trial of Nicola Sacco and Bartolomeo Vanzetti. Mainstream popular fiction also acknowledged repeatedly its particular socioeconomic context, as in Dorothy Canfield's The Bent Twig (1915), an occasionally Jamesian romance that manages nonetheless to glance significantly at racial injustice and whose love plot turns on a question of state versus private control of the Colorado mining industry.

Even the most committed formalists themselves, as modern scholarship increasingly demonstrates, wove social and political concerns inextricably into their work in different ways. F. Scott Fitzgerald (1896–1940) began and ended his career with works that looked explicitly at labor unrest: This Side of Paradise (1920) and The Last Tycoon (also published as The Love of the Last Tycoon), which was unfinished at his death in 1940. He also positioned the romantic artist of his 1920 story "May Day" against the background of the Red Scare. In his essay "Does The Waste Land Have a Politics?" (1999), Michael Levenson has persuasively paired Eliot's The Waste Land (1922) with John Maynard Keynes's Economic Consequences of the Peace (1919). Willa Cather in The Professor's House (1925) evoked exactly the issues of contract, labor, and ownership that informed progressive legal theory. William Faulkner's Quentin Compson (in The Sound and the Fury, 1929) is pursued by an angry, justice-seeking Italian immigrant across a Massachusetts suburban countryside made famous by Sacco and Vanzetti.

Nonetheless the major American high modernists did differ dramatically from their naturalist predecessors, both in meticulous attentiveness to form and in their bottomless ironizing, their cultivated postures of neutrality. In much of their work, observation of modern experience—"the immense panorama of futility and anarchy which is contemporary history," in Eliot's famous phrase in his 1923 Dial review of James Joyce's Ulysses (p. 483)—generates quiet gloominess rather than an impulse to action. One can perhaps best understand this passivity as arising from an anxiety over the final implications of an intellectual movement from idealist to realistic models for social organization or from a world organized around individual rights to a world organized around collective needs. The pragmatism behind progressive legal, social, and literary thought brought with it a threatened dissolution of post-Renaissance Western culture's core paradigm, the sovereign, voluntary individual: of voice itself, in fact.

JUSTICE DENIED IN MASSACHUSETTS

Edna St. Vincent Millay (1892–1950), who joined the Boston protests before the Sacco and Vanzetti executions, wrote the contemporaneous poem "Justice Denied in Massachusetts" (1927). It deployed the recently familiar trope of the wasteland, suggesting an America abdicating its social responsibility.

Let us abandon then our gardens and go home

And sit in the sitting-room.

Shall the larkspur blossom or the corn grow under the cloud?

Sour to the fruitful seed

Is the cold earth under this cloud,

Fostering quack and weed, we have marched upon but cannot conquer;

We have bent the blades of our hoes against the stalks of them.

Let us go home, and sit in the sitting-room.

Not in our day

Shall the cloud go over and the sun rise as before,

Beneficent upon us

Out of the glittering bay,

And the warm winds be blown inward from the sea

Moving the blades of corn

With a peaceful sound.

Forlorn, forlorn,

Stands the blue hay-rack by the empty mow.

And the petals drop to the ground,

Leaving the tree unfruited.

The sun that warmed our stooping backs and withered the weed uprooted—

We shall not feel it again.

We shall die in darkness, and be buried in the rain.

What from the splendid dead

We have inherited—

Furrows sweet to the grain, and the weed subdued—

See now the slug and the mildew plunder.

Evil does not overwhelm

The larkspur and the corn;

We have seen them go under.

Let us sit here, sit still,

Here in the sitting-room until we die;

At the step of Death on the walk, rise and go;

Leaving to our children's children this beautiful doorway,

And this elm,

And a blighted earth to till

With a broken hoe.

Millay, "Justice Denied in Massachusetts," in Collected Lyrics, pp. 230–231.

Such an anxiety may have to do with modernism's well-known retreat into form, myths, and nostalgia. It certainly did have to do with Roscoe Pound's increasing conservatism in his post–World War I career at Harvard, where his early enthusiasm for administrative law (the administration of law by state agencies to serve public needs) gradually transformed itself into a reaffirmation of the unwritten English common law and a stubborn opposition to Franklin D. Roosevelt and his New Deal. But most jurisprudence in the 1920s continued to develop along the practical, neo-positivist lines set down by the progressive thinkers, and by 1930 something like the sociological jurisprudence that Pound had envisioned but never completed was being articulated as a coherent legal movement by a group of thinkers who became known as the legal realists. They were mainly based in the law schools at Columbia and Yale and included Karl Nickerson Llewellyn (1893–1962), Walter Wheeler Cook (1873–1943), William Underhill Moore (1879–1949), William O. Douglas (1898–1980), and Herman Oliphant (1884–1939), among others. And by comparison with their predecessors they were radical skeptics, willing to let go of both legal absolutism and the autonomous subject.

The legal realists wholeheartedly embraced Holmes's particularist dissent in Lochner, "general propositions do not decide concrete cases," and made it the key tenet of a practical legal philosophy that located the major sources of legal decisions in facts, not in abstract principles: "no ideas but in things," as the poet William Carlos Williams (1883–1963) was to write in Paterson in the 1940s (p. 9). They mistrusted idealization. Jerome Frank (1889–1957), a New York attorney, produced one of the movement's most colorful early manifestoes, Law and the Modern Mind, using Freudian and Nietzschean terms to attack idealist jurisprudence as an expression of infantile dependency, an unacknowledged form of father worship: for law to result in justice, Frank announced, "there must be a twilight of the gods . . . law cannot function at its best if it must still also in some degree do the work of religion" (p. 199). Like the progressive legal thinkers of the century's first two decades, they insisted that lawyers needed to take cognizance of modern economics, sociology, and psychology but with a difference: for legal realism, social science was not so much a tool for getting at justice or the legal truth as a way of thinking about law itself as a socially determined, historically fluid human activity. In short, the legal realists celebrated and theorized the quintessentially modernist epistemologies of uncertainty and indeterminacy that led many of their literary contemporaries into neoclassical formalism. Their work built flexible theoretical supports for the genuinely administrative and sociological law that articulated the New Deal, the great American triumph of collectivist thinking, in the late 1930s.

LEGAL THEATER AND THE WRITERS OF THE LEFT

Even as legal theory itself moved increasingly toward a complexly informed relativism in the twentieth century's first three decades, the American public's understanding of law grew more individualized, personalized, and simply theatrical, mainly because of increasingly efficient techniques of journalism that allowed the rapid national dissemination of news and images. Police cases and courtroom trials offered the reading public dramatic experiences like those of serialized fiction but with the additional attraction of unfolding daily—and of being "real," although such a reality, founded in the very fictive nature of law that jurisprudence sought to remedy, was paradoxical at best.

The principal performer on the legal theater's public stage was Clarence Darrow (1857–1938), the famous midwestern defense lawyer who began his career in Chicago in the 1890s representing labor organizers facing criminal prosecution. Darrow's particular skill—like that of Upton Sinclair and other reformers—lay in individualizing the oppressed, using sentimental oratory to galvanize public sympathy for the tragic figures of workers accused of striking back against injustice. An immensely attractive figure in his passionate identification with the causes that he represented, Darrow captivated journalists in the century's first decades in a series of sensational courtroom performances in the Midwest and West. But he is most remembered for two courtroom dramas of the mid-1920s far removed from issues of labor or even, to his critics, of justice: the Leopold and Loeb trial in Chicago, where he negotiated life sentences for two wealthy young men who killed a teenager in a self-aware gesture of Nietzschean will; and the celebrated Scopes "monkey trial" in Dayton, Tennessee, a showcase event for the emergent American Civil Liberties Union, in which Darrow faced the aging William Jennings Bryan over the teaching of evolution in public schools. Darrow's best legal theater (and both of these trials inspired plays and movies) turned out, unsurprisingly, to evoke the classical and timeless drama of the beleaguered individual, not the sociological analysis to which law's theory increasingly turned.

Yet the third sensational case of the 1920s, the seven-year Massachusetts murder trial of Italian immigrant anarchists Nicola Sacco and Bartolomeo Vanzetti, did in its final effects passionately revive for some writers the progressive rage for social justice. The case invoked for its audiences both the familiar plight of the powerless immigrant workingman and the court's apparent complicity, to the point of disregarding fundamental legal procedure, in carrying out the political wishes of a government enthralled by the Red Scare of 1919 and 1920. It deeply involved the Harvard legal community, leading Felix Frankfurter to an extraordinary public attack (in the Atlantic Monthly) in 1927 on Webster Thayer, the judge presiding over the original trial and its appeal. Frankfurter's outburst was not quite the old progressive complaint of traditional law's inadequacy to deal with collective, corporate society; it was rather that law had in the Sacco and Vanzetti trials become corrupted, an agent of the most oppressive kind of political power.

Sacco and Vanzetti became a rallying point for writers of the old Left, including Upton Sinclair and Emma Goldman. John Dos Passos (1896–1970), who had written about Sacco and Vanzetti for New Masses and the Sacco-Vanzetti Defense Committee (and who also took part in the pre-execution protests), wrote the trial and executions into the climax of The Big Money (1936), the final volume of his U.S.A. trilogy, as epitomizing a final division of American society between oppressors and oppressed:

they have clubbed us off the streets they are stronger they are rich . . . their hired men sit on the judge's bench they sit back with their feet on the tables under the dome of the State House . . . they have built the electric chair and hired the executioner to throw the switch all right we are two nations. (Pp. 1156–1157)

His indictment of an entire society brutally ruled by a faceless "they," an invisible malignant alliance of business, the state, and the law, was a new kind of critique: paranoid sounding but also the product of an undistorted realism, a vision finally free of illusion. It fore-shadowed the repudiation of public America that would mark protest literature through a generation of Beat writers and on into the late twentieth century, from Allen Ginsberg to Thomas Pynchon. The sustaining fiction of an orderly society founded in consistent, equitable legal principles had been stretched to the breaking point, and the deaths of Sacco and Vanzetti signaled its irreversible dissolution.

See alsoCapital Punishment; The House of Mirth; The Jungle; Law Enforcement; Lochner v. New York; Maggie, A Girl of the Streets; McTeague; Plessy v. Ferguson; Reform; Sister Carrie; This Side of Paradise

BIBLIOGRAPHY

Primary Works

Cardozo, Benjamin N. The Nature of the Judicial Process. New Haven, Conn.: Yale University Press, 1921.

Dos Passos, John. The Big Money. 1936. In U.S.A. 1938. New York: Library of America, 1996.

Eliot, T. S. "Memory, Order, and Myth." The Dial 75, no. 5 (November 1923): 480–483.

Eliot, T. S. "Tradition and the Individual Talent." 1919. In Selected Essays of T. S. Eliot. New York: Harcourt, Brace, and World, 1964.

Frank, Jerome. Law and the Modern Mind. New York: Tudor Publishing, 1935.

Frankfurter, Felix. "The Case of Sacco and Vanzetti." Atlantic Monthly, March 1927, pp. 409–432.

Joyce, James. A Portrait of the Artist as a Young Man. 1916. New York: Viking, 1964.

Lochner v. People of the State of New York, 198 U.S. 45 (1905).

MacLeish, Archibald. "Ars Poetica." In Collected Poems, 1917–1982, p. 107. Boston: Houghton Mifflin, 1985.

Millay, Edna St. Vincent. "Justice Denied in Massachusetts." In Collected Lyrics, pp. 230–231. New York: Harper & Brothers, 1943.

Plessy v. Ferguson, 163 U.S. 537 (1896).

Williams, William Carlos. Paterson. New York: New Directions, 1963.

Secondary Works

Fisher, William W., III, Morton J. Horwitz, and Thomas Reed, eds. American Legal Realism. New York: Oxford University Press, 1993.

Horwitz, Morton J. The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy. New York: Oxford University Press, 1992.

Hull, N. E. H. Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence. Chicago: University of Chicago Press, 1997.

Leiter, Brian R. "American Legal Realism." In The Blackwell Guide to Philosophy of Law and Legal Theory, edited by W. Edmundson and M. Golding. Oxford: Blackwell, 2003. Social Science Research Network Electronic Library, http://ssrn.com/abstract=339562.

Levenson, Michael. "Does The Waste Land Have a Politics?" Modernism/Modernity 6, no. 3 (September 1999): 1–13.

Tierney, Kevin. Darrow: A Biography. New York: Crowell, 1979.

Wigdor, David. Roscoe Pound: Philosopher of Law. Westport, Conn.: Greenwood Press, 1974.

John N. Swift