Christopher Columbus Langdell and Legal Formalism

 Law is “a rational, logical system. A formalist judge makes decisions deductively—that is, by
drawing conclusions from premises according to formal rules of reasoning.” (p.24)
 In deciding cases, judges are “reinforcing and uncovering fundamental legal rules and principles”
(p.102)
 “[J]udges never make new law … despite superficial appearances to the contrary, judges never
determine what the law shall be. Judges are confined to saying what they believe the law consisted in
before their decision, which is the mere application of it.”[1]
 represented by Justice Truepenny in the case of the speluncean explorers

Langdell’s Formalism.

Christopher Columbus Langdell (1826-1906)

 perhaps the most important figure in the history of American legal education
 served as Dean of Harvard Law School from 1870-1895
 made changes to the legal curriculum that law schools still follow, e.g., students must have a
bachelor’s degree and pass an admission test to enter; length of study is three years, instead of one.

The Case Book Method and Jurisprudence as Science.

Langdell introduced the case book method of legal study: he required his students to study actual cases,
rather than textbooks full of statutes. The point was for students to learn how to identify the general
legal principles underlying individual cases. This is still the predominant method of legal training in the
US today.

Langdell took jurisprudence to be a deductive science, the point of which was to identify the general
legal principles embodied in the reasoning and decisions of multiple cases, and to classify and arrange
those principles, thus revealing them to be part of a system.

Here the word “deductive” means deductively valid. We’ve already encountered the notion of deductive
validity, or “validity” for short:

validity (a.k.a. deductive validity) (df.): A valid argument is one in which the truth of the
premises would guarantee the truth of the conclusion; i.e., it is impossible for the premises to
be all true and the conclusion to be false at the same time.

soundness (df.): A sound argument is one that is valid and has all true premises.

strength (a.k.a. logical strength, a.k.a inductive strength (df.): A strong argument is one
in which the truth of the premises would make the truth of the conclusion likely or probable;
it is logically possible for the premises to be true and the conclusion false (so the argument is
not deductively valid), yet the premises still provide some measure of evidential support to
the conclusion.
The difference between deductive validity and inductive strength is best explained this way: each
corresponds with a different standard we can apply in evaluating the logical aspect of an argument:[2]
 we can ask whether the truth of the premises would guarantee the truth of the conclusion. If so,
the argument is deductively valid.
 we can ask whether the truth of the premises would (not guarantee the truth of the conclusion,
but) make the truth of the conclusion likely, or probable. If so, then the argument is inductively
strong.

Langdell’s formalism held that judges make decisions by deductively inferring their rulings from more
general principles.

And the casebook method involved poring over case law in an attempt to identify the general
principles that deductively imply those individual rulings.

Example: The Mailbox Rule.

Langdell’s formalism is illustrated in Grey’s discussion of the mailbox rule: “an elementary principle of
contract law that holds that a contract acceptance is valid upon dispatch in the U.S. mail.”[3] In other
words, if you are responding to an offer to enter into a contract, and you respond by accepting the offer,
the contract becomes binding when you put your acceptance into the mail, before your acceptance is
received by the party that offered you the contract.

This is currently an accepted principle of common law. But in the 19th century, it was controversial.

Langdell maintained that the question whether this principle ought to hold should not be settled based on
considerations of practicality or convenience. Rather, it should be settled by appeal to general
principles.

He construed a contract as a promise, and emphasized the general principle that a promise is not binding
until it has been communicated to the person to whom it is being made. “A promise ‘into the air’ is
no promise at all.” (Grey, at Simon p.105)

According to Langdell, since the acceptance of the contract is not communicated to the offerer until the
offerer receives it, the mailbox rule should not be maintained.

The following description of Langdell’s formalism shows how the example of the mailbox rule illustrates
his case-book method:

To understand a given branch of legal doctrine in a scientific fashion, one must begin … by first identifying
the elementary principles on which that field of law is based (for example, in the case of contract law, the
principles that the minds of the parties must meet for a contract to be formed and that each must give
or promise to give something of value to the other in return). These elementary principles are to be
discovered by surveying the case law in the area. Once they have been identified, it is then the task of
scholars to work out, in an analytically rigorous manner, the subordinate principles entailed [i.e.,
deductively implied] by them. When these subordinate principles have all been stated in propositional form
and the relations of entailment among them clarified, they will … together constitute a well-ordered system
of rules that offers the best possible description of that particular branch of law—the best answer to the
question of what the law in that area is … [I]ndividual cases that cannot be fit within this system must be
rejected as mistakes.[4]
So Langdell rejected the ruling that gave rise to the Mailbox Rule as a mistake, since it was in
conflict with the general principles underlying earlier case law with regard to contracts.

There is an up-and-back-down-again element in Langdell’s conception of legal reasoning:

 First, we survey many particular decisions made by individual judges in order to identify the higher-
level, more general legal principles that those judges are assuming. The question is: what are the
general, higher-level principles that deductively imply these individual decisions? [Answer: “the
minds of the parties must meet in order for a contract to be formed.”]
 Then, once those principles are identified, further individual decisions can be derived from them. At
this stage the question is: what are the specific, lower-level decisions that are deductively implied
by those higher-level principles? [Answer: “a mailed contract becomes legally binding only when it
is received by the offerer” (and so the Mailbox rule is bad law and should be rejected.]

Langdell acknowledged that the mailbox rule would serve “the purposes of substantial justice, and
the interests of the contracting parties, as understood by themselves.”[5] But he also held that these sorts
of considerations are irrelevant to the question whether the mailbox rule should be maintained. Those are
the sorts of considerations that a judge ought to take into account according to a legal realist. But from
Langdell’s formalist point of view, judges ought not take such things into account at all.

Legal Realism and Holmes’ Criticism.

Law is “an all-too-human activity. Realists find judges making pragmatic, and often illogical, decisions.”
(p.24)
 “[J]udges do not merely consult legal rules, but actually find legal rules that suit their
interests.”(p.102)
 On this view judges cannot “avoid taking account of public opinion and acknowledging the realities
of the administration of criminal law.” (p.57)
 represented by Justice Handy in the case of the speluncean explorers

Oliver Wendell Holmes, Jr.

 1841-1935
 associate justice of the Supreme Court from 1902-1932
 viewed as a forerunner of contemporary legal realism

Holmes was extremely critical of Langdell’s legal formalism. His famous response was as follows:

The life of the law has not been logic: it has been experience. The seed of every new growth within its
sphere has been a felt necessity. The form of continuity has been kept up by reasonings purporting to
reduce every thing to a logical sequence; but that form is nothing but the evening dress which the new-
comer puts on to make itself presentable according to conventional requirements. (Holmes, at Simon
pp.106-7)[6]

In other words:
 The actual practice and growth of law has not been a matter of judges logically deducing their
decisions from statutes and prior decisions; it is, rather, a matter of their making decisions based
on what they feel is the correct decision.
 Those decisions are accompanied by “reasonings” the point of which is to make the
decisions appear as if they follow logically from existing law, or at least that they are logically
consistent with it. But these logical “reasonings” hide the actual motivations for decisions and serve
to make them presentable.
Holmes continued:

The important phenomenon is the man underneath it, not the coat; the justice and reasonableness of a
decision, not its consistency with previously held views. No one will ever have a truly philosophic mastery
over the law who does not habitually consider the forces outside of it which have made it what it is.
(Holmes, at Simon 107)

 What’s truly important about any legal decision is not that it be logically consistent with other
laws, but that it be, considered on its own, both reasonable and just.
 Because the law is a human affair, and the result of human decision-making based on human
needs, it is impossible for a system of law to remain completely self-consistent: so Langdell’s goal
of perfect logical consistency is not attainable.

[1]
Mark Tebbit, Philosophy of Law: An Introduction, 2nd ed., New York, Routledge, 2005, p.52.

Here I’m following Haack, Philosophy of Logics, 1978, p.12. She says she’s following B. Skyrms, e.g. Choice
[2]

and Chance, 1966, ch.1.

[3]
McClurg, Andrew J., “Please Mr. Postman,” ABA Journal 83 (12): 1997.

A. Kronan, The Lost Lawyer, 1993, p.171, quoted in Brian Leiter, “Legal Realism,” in A Companion to
[4]

Philosophy of Law and Legal Theory, Blackwell, 1996, 261-79, p.276, emphasis added.
[5]
Langdell, quoted by Grey, at Simon 105; emphases added. Also quoted by Holmes at Simon p.106.
[6]
The criticism of Langdell by Holmes became one of Holmes’ most famous passages:

... Holmes in 1880 criticized what he considered to be Langdell’s rigidly logical approach to jurisprudence,
pointing particularly to Langdell’s passing comment that “substantial justice and the interests of the
parties” were “irrelevant” to analysis of the mailbox rule in contract law. This logical “habit of mind” led
Holmes to call Langdell “the greatest living legal theologian” and to issue the reprimand: “The life of the
law has not been logic; it has been experience.” The latter aphorism, subsequently enshrined in the opening
lines of [Holmes’ book] The Common Law, became “the most famous Holmes quotation of all” and “the
most famous sentence he ever wrote” and contributed to casting Langdell and Holmes as antithetical
throughout the second and third quarters of the twentieth century. (Bruce Kimball, “The Langdell
Problem,” Law and History Review, 2004,
<http://www.historycooperative.org/journals/lhr/22.2/kimball.html>.)

(Note that Kimball argues that the reputation of Langdell as a strict adherent of formalism is a result of caricatures
of his views put forward by Holmes and others.)