18 Restatements and Realists

In hindsight, it seems obvious that the aims of the American Law Institute’s (ALI’s) founders and drafters of its first Restatements and those of the movement of iconoclastic legal intellectuals who were called Legal Realists were bound to collide. Indeed the clash between Restaters and Realists has often been portrayed as an epic final battle between an expiring old order of legal “Formalism” and “conceptualism” or—most unkindly—between “transcendental nonsense” and a brash new jurisprudence variously labeled “sociological” or “functional” jurisprudence.

That picture is not entirely wrong but needs qualification and nuance. Exactly what Formalism was and what was arguably wrong with it, and whether the Restatements’ drafters and their sponsors actually were Formalists, are much disputed. And although it’s evident that many Realists severely criticized both the ALI’s general aims and their concrete realization in the first Restatements, it’s useful to try to recapture what the specific critiques were and to assess their validity. Finally, it’s worth asking whether there were any ways in which the ALI might have responded constructively to the Realist assault.

Take “Formalism” first, sometimes called “classical” legal thought. The conventional view that today’s lawyers have of late-nineteenth- to early-twentieth-century legal thought is very much the view bequeathed to us by its Progressive and Realist critics. For some of these critics, “Formalism” meant something like Max Weber’s logical-formal-rationality, the idea that all of law could be organized into a harmonious system of consistent principles, with all the rules and subrules of the system deducible from the principles: a gapless and complete system in which right answers to all legal questions could be arrived at through correct reasoning from abstract premises. For some, it meant conceptualism, the notion that all or almost all of private law doctrines could be explained as deriving from basic norms such as protection of the individual will (“will theory”). The task of conceptualist legal science was to extrude the principles from the cases and then organize the cases under the principles. The task of judges was not to make law but to declare or discover the preexisting law. Formalists assumed (their critics said) that private-law reasoning was, and ought to be, an autonomous science, entirely distinct from political, economic, or moral reasoning. Policy considerations, consequentialist accounting of social harms or benefits of particular legal outcomes, were for legislatures to consider in modifying the common law—which however they should do as little as possible.

Sometimes however “Formalism” meant something a lot less elaborate, simply that legal decisions were best expressed (in court decisions, in codes, in scholarly literature expounding them) as narrow, bright-line rules, requiring few facts to be proved and little discretion in their application, and that written instruments such as constitutions, statutes, wills, and contracts should be interpreted in accord with their apparent plain textual meanings, without supplementary inquiry into contexts.¹

Once the Progressive and Realist critics had described Formalism in these ways, the basic lines of critique were clear. The supposed gapless complete system of logically related principles, the supposed determinate relation of principles to rules, and of rules to results in particular cases, the supposed autonomy and neutrality of the classical system were all sham and delusion. Common law judges made law all the time, could not help but make law, whenever they applied rules to new fact-situations. If they denied their discretion to make law, they were likely unthinkingly to freeze the law in traditional ways and fail to adapt it to changing needs. In constitutional cases especially, the law they made was anything but apolitical: in fact, it enacted the premises and program of an outworn set of natural-law principles, or an outworn classical political economy (“the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics”²). (Criticisms of the narrower view of Formalism as strict rule-following or textualism were the same as they have always been, that the approach fails, sometimes seriously and indefensibly, to do substantive justice in individual cases.)

The Progressive-Realist critics—beginning, in the standard story, with Holmes—sought to liberate legal reasoning from both conceptualism and mechanical rule-following. In their view law was not a “Heaven of Legal Concepts,” to quote the German legal theorist Rudolf von Jhering’s satiric view of his formalist contemporaries’ vision of law,³ but a social product demanded by and serving social “interests,” and properly directed to the service of valued social ends, and therefore to be executed and evaluated by how effectively it served those ends. This “social jurisprudence,” as it was called in Europe, or “sociological jurisprudence,” to use Roscoe Pound’s term, acknowledged that judges needed to take account of interests and purposes served by legal rules, and that jurists, or legal scientists, needed to study the “law in action,” the rules’ actual social effects.⁴

The Progressive-Realist critique summarized in the preceding has been, for most of the last century, the generally received account of the dominant modes of legal thought from around 1870 to around 1920. The founding of the ALI has sometimes been conveniently slotted into this account as the last gasp of establishment Formalism before it was besieged, and eventually overrun, by its Progressive-Realist adversaries.

But there are serious problems with this account. It turns out not to be easy to find judges of the period who believed in, or engaged in, strict top-down reasoning from a priori principles, and very easy indeed to find judges who candidly acknowledged that common law judges made law, that the effective service of valued social purposes was the ultimate aim of law, and that hard cases or novel cases required discretionary choice among available principles and precedents.⁵ The view of classical judges as mechanical slot machines, spitting out hard-and-fast rule-based answers as soon as facts were fed to them, has proved equally frangible—although legal historians acknowledge that under the pressure of caseloads, much judicial decision-making of the late nineteenth century had indeed become more formal in the sense of conforming to bureaucratic routine.⁶

The two figures whose work was most commonly identified with Formalism were C.C. Langdell and Joseph Henry Beale, both practitioners of analytic jurisprudence and the case method of teaching, both affiliated with Harvard—Langdell, of course, as its pioneering Dean and Beale as a professor who later brought the Harvard system to Chicago as a missionary Dean. Langdell had famously been labeled by Holmes as a “legal theologian” who believed law was based on “logic” rather than “experience,” and as a result became most of the Realists’ practice target for Formalism, and remains so to this day. The Realist Jerome Frank chose the label “Bealism” to stand in for his (highly colored and caricatured) version of Formalism, which he called “legal fundamentalism.” Heroic ingenious effort has gone recently into rehabilitating both thinkers, especially Langdell, who has been revealed to be an accomplished practitioner, a practical-minded educational innovator, and a surprisingly flexible and undogmatic legal theorist.⁷ Langdell died well before the founding of the ALI, but Beale was an influential agent in its founding, and of course served as the Reporter for the first Restatement of Conflicts.⁸ Another ALI figure who was a frequent target of Realist critique was Samuel Williston, the great Contracts scholar and Reporter for the first Restatement of Contracts.

But was it right to tag the ALI and its Restatements as a reactionary Formalist project? At the outset in 1923, it would seem not. As N.E.H. Hull has been at pains to demonstrate, the ALI was the brainchild of the legal profession’s moderate reform wing, best classified as legal Progressives: they included, among many other such worthies, Judges Benjamin Cardozo, Learned Hand, and Julian Mack; former and future Justice Charles Evans Hughes; and Professors William Draper Lewis (the ALI’s first Director), Roscoe Pound, Arthur Corbin, Ernst Freund, Edmund Morgan, and John Henry Wigmore. “Progressive” is a relative term of course, and among the ALI’s founders were nativists who wanted to protect the elite bar from contamination by night-schooled immigrant lawyers. But in terms of basic jurisprudential divides, the founders were “social” jurists, mostly friendly to social legislation and the growing administrative state and critics of classical-constitutional decisions on “freedom of contract,”⁹ and who saw the ALI as a vehicle for modernizing law to adapt it to valued social ends.¹⁰

Prominent critics of classical formalism were involved in the ALI’s projects from the start. Williston chose Arthur Corbin as his chief Associate Reporter for the Contracts Restatement. Grant Gilmore famously cast Williston and Corbin as antagonists, battling over conflicting views of contract obligation, resulting in the “schizophrenia” of the First Restatement, “matter” versus “anti-matter.”¹¹ Corbin, like Pound, was a sort of proto-Realist. Unlike the most extreme Realist skeptics, Corbin did not think cases useless for prediction of decisions in future cases. He believed that the operative facts in the decided cases were a great storehouse of data on customs and mores, that in each new case the judge made a tentative generalization from the facts in that case and in previous cases. Each such generalization “is drawn from a group of related situations and is to be corrected or replaced by other generalizations by other judges and scholars as new situations and new life conditions press on their attention.”¹² By such means law evolves along with social change. Williston by contrast favored general abstract statements of legal principles and was much more of a narrow rule-formalist. He was, however, a moderate Progressive both in politics and jurisprudence and, like Pound, a critic of “freedom-of-contract” dogmatism in either private or public law.¹³ Despite their differences, Williston and Corbin worked together cooperatively to the end.¹⁴ Francis Bohlen, the Principal Reporter of the first Restatement of Torts, was also a “social” jurist who by the 1920s had “believed that a useful way of thinking about tort law was to identify the ‘social interests’ whose ‘invasion’ was reflected in particular tort claims.”¹⁵ Among Bohlen’s Advisers on the ALI project was Leon Green, famous later as an arch-Realist critic.

For the Contracts project, Williston also chose as an Adviser Herman Oliphant,¹⁶ who in the very year of the ALI’s founding (1923) was beginning to lead the young rebels of the Columbia Law faculty to reorganize its curriculum along “functional” lines, that is, by effects on different areas of social life (familial, economic, political) and by fields of social science rather than doctrinal fields,¹⁷ and who was to become a prominent Realist. In 1923, Oliphant was an optimist about the ALI’s prospects.¹⁸ But his optimism was based on the hope that, in making the choice among conflicting rules or principles, the ALI would investigate the “social structure affected by the body of law being studied” in order to assess the relative utility of the rules proposed.¹⁹ This call for comprehensive law-in-action studies was eventually to become one of the principal enterprises of the Realist movement, albeit one with limited successes.²⁰ But needless to say the ALI did not take up this challenge, accepting instead Roscoe Pound’s advice to stick with arranging cases under familiar doctrinal categories such as “Contract, Tort, Trust.”²¹

And, in fact, it did not take long before the Restatements came under fire from the legal theorists beginning to think of themselves as Realists.²² Myres McDougal in 1937 provided a concise summary of the critiques:

Some reviewers have pointed to naivete in fundamental assumptions—assumptions that certainty is obtainable and obtainable by high abstractions, that certainty is more important than flexibility, that “substantive law” is all-comprehensive and designed to govern human conduct in and out of courts, that the defects of “the law” can be cured by restating it as it is, that a restatement of the law as it is a restatement of it as it ought to be, and so forth; others have deplored the omission of historical, economic, and sociological backgrounds and of studies of comparative experience in other countries, the ignoring of, except by indirection, consideration of what “the law” ought to be, a failure to study the social consequences of institutions and doctrines, the omission of supporting authorities, reasoned discussion, and contrast of conflicting opinion, the use of “doctrinal” rather than “factual” classifications and of the blackletter-comment-illustration formula of expression, and so forth. Yet to all of these criticisms the officials of the American Law Institute have remained impervious.²³

Let’s break down this broadside critique, which was expressed both in reviews of specific Restatement projects and of the ALI’s approach as a whole, into its different components.

The early Restatements were unadorned statements of black-letter rules, each followed by brief “Comments” and a few “Illustrations,” examples of concrete applications. No cases were cited. The choice of form was deliberate. The aim after all was to drastically lighten the burden of practitioners trying to assimilate a wild proliferation of case law, by simplifying and rationalizing the law of each doctrinal field, while also engaging in the modest reform project of modernizing the rules in accord with professional opinion on best practices. The form was chosen to mimic that of a code, while avoiding state legislatures and the supposed inflexibility of codes: it was hoped that the product of leading scholars, reviewed and approved by the cream of bench, bar, and academy, would furnish its own sufficient authority. The ALI’s founders had planned to follow the publication of each Restatement with a treatise providing further discussion of the rules and citation to relevant cases. This plan was relatively easy to fulfill with respect to the Restatements of Contracts and Conflicts, since Williston had already completed his treatise and Beale’s was well underway (it appeared in 1935, one year after the Restatement). But the plan to supplement with treatises proved impractical. What remained was the Black Letter.

The “resulting statement” of this set of decisions, wrote Dean Charles Clark of Yale in a scathing review of the Contracts Restatement in 1933, was the actual “law nowhere and in its unreality only deludes and misleads. It is either a generality so obvious as immediately to be accepted, or so vague as not to offend, or of such antiquity as to be unchallenged as a statement of past history.”²⁴

From the beginning, the plan seems to have suffered from a vacillation between the two positions that the restatement should announce a more or less binding and final rule of law and that it should be an informed and informing statement of actual legal realities. On the former plane it is subject to the defects of a code with an added question as to the nature of the sovereign authority behind it, but at least it then has the opportunity of boldly forcing reform. On the latter plane it is bound by conditions as they are, but it is realistic and actual. The plan has swung more and more to the former position, but with the important limitation that the now law must be stated. In result this has meant the assumption of the chief defects of each position-the rigidity of a code (with the added unreality that it is a declaration unsupported either by a sovereign or by past precedent) and without the opportunity for reform and advance which a code affords.²⁵ …

[T]he black letter itself is, as must be expected, a compromise to cover various views. With one leg it steps forward; with the other it goes backward. It is caught between stating the law which should be and the law which is and often ends by stating only the law that was. …

The necessity of agreement on black letter forces each participant to a choice of position which, when stated as a group result, must inevitably tend towards (a) the ancient historical rather than the modern rule or possible future trend, (b) the conventional safe and unoriginal point of view and (c) a compromise which goes only to the point whereon all are agreed.²⁶

Finally Clark—in words that could easily have been written by his colleague Arthur Corbin,²⁷ but for the fact that Corbin happened to be the Associate Reporter for the project under review—scolded the Restaters for their textual formalism: “[W]ithout interpretation, or background against which meaning can be discovered, the black letter statements are not understandable. The idea that words speak for themselves, without interpretation in the light of the circumstance under which they were composed or arranged, has been too often exploded with reference to wills, contracts and written instruments generally, to be believed again with respect to the restatements.”²⁸

Clark was one of several reviewers who complained that the Restatements failed to disclose when they were stating dominant views of existing law or proposing its revision.

Edwin Patterson believed this practice concealed a fundamental schizophrenia about the aims of the project. Were the Restatements based on a deductive theory that all the existing rules could be derived from a few natural-law like propositions? Or on an inductive theory that “jurists can observe thousands of cases and formulate laws of judicial behavior”?²⁹

The text [of the Restatement of Contracts] is in the form of assertions in the present tense rather than either norms (statements of what ought to be), commands (statements of what shall be) or predictions (statements of what will be). The form is consistent with the implication that this is merely a report of what the law is. Yet clearly the Restatement, if it has any utility for the future, will be taken in one of the other senses above mentioned. In which sense is it to be taken? Aside from the definitions which state that one thing is equivalent to another, the commonest forms of statement are: “is operative,” “must be made,” “party is bound,” “duty is discharged.” Do these statements prescribe conduct or predict what courts will do?³⁰ … The Restatement purports, in the main, to treat judicial precedents as authoritative support for a set of rational propositions, rather than as the data of statistical inferences.³¹ … Conflicting statutes are mentioned (not cited), thus preserving the theory that the Restatement is a summation of law in force, yet conflicting decisions are ignored, thus indicating that it is an analytical system of ideal principles.³²

Thurman Arnold similarly noted that the desire to expound legal doctrine in formulations familiar to practicing lawyers conflicted sharply with the aim of rational clarification:

There appears to be a deep seated prejudice throughout the restatement [of Trusts] against stating that any judicially recognized rule or concept has been shown to be useless. It is sometimes done by implication, but never directly. To say that a rule of law is simply a way of talking which conceals the real issue of the case seems to be reserved for law review articles and excluded from the restatement. Such a statement in black letter type would be a real innovation. It appears to be condemned as “destructive criticism” of the “law” instead of “restatement.” The result of this attitude is that if all sorts of things have been called “trusts,” we are under a positive duty to define trusts so that our definition includes all of them. Hence the broad and inclusive definition with which the restatement begins, and the conventional lines which it follows.³³

The Reporters’ treatises that were part of the ALI’s original plan could have explained why older doctrines were sometimes chosen (e.g., because too familiar to practitioners to be abandoned), and sometimes discarded in favor of newer ones (e.g., because in forward-looking jurisdictions doctrine was being modernized to adapt to changed conditions); but the treatise project had been shelved.

Hessel Yntema, looking back at the early Restatements in 1936, thought that ALI had paid too high a price in sacrificing its reformist aims to delivering a product acceptable to the practicing bar.

This much is certain, that the notion of improving the law by restating it as it is, is unsatisfactory. Nay more, it constitutes an indefensible retreat from the objective of the Institute. The Institute was created to ameliorate, not to perpetuate, the existing difficulties in the legal system. … Where there is diversity in the law, how can it be stated in a single rule? Where there is uniformity, what is the need for restatement? If the law is to be restated as it is, there is no escape from this dilemma. In consequence of this conception, it is convenient to suppress the treatises, since they would demonstrate the insecure basis upon which the supposed law as it is rests. Consequently, too, most of the data to which attention should be given in a responsible formulation of law have to be excluded in the preparation of the Restatement—data as to the practical needs to be met and as to the appropriateness of the means of regulation employed to meet them. The conception of restating the law as it is necessarily cannot admit such considerations, because they might require an improvement and therefore a change in existing law. If, as may well be the case, any such considerations have obtruded themselves into the present Restatement, they have been smuggled.³⁴

It was hardly to be expected that once the Restatements appeared, legal thinkers associated with Realism would find them adequate guides to the realities of either existing or emerging law. The “core claim” of Realism, as Brian Leiter has helpfully put it, is that “judges respond primarily to the stimulus of facts. Put less formally—but also somewhat less accurately—the Core Claim of Realism is that judges reach decisions based on what they think would be fair on the facts of the case, rather than on the basis of the applicable rules of law. … What the descriptive Formalist really claims is that judges are (primarily) responsive to legal reasons, while the Realist claims that judges are (primarily) responsive to nonlegal reasons.”³⁵ The nonlegal reasons vary from Realist to Realist. For some, like Jerome Frank, they are grounded in the experience and psychology of the individual judge,³⁶ but Frank’s view is atypical. For others, like Karl Llewellyn, they are grounded in situation-sense, the judge’s educated feel for the result called for by commercial custom, fairness to the parties in the particular case, and sound policy for future similar cases. Realists also disagree on the weight to be given legal versus nonlegal reasons for decisions, ranging from close to nihilism (rules = random noise³⁷) to the much more common position of “distrust of the theory that traditional prescriptive rule-formulations are the heavily operative factor in producing court decisions. … It will be noted that ‘distrust’ in this and the preceding point is not at all equivalent to ‘negation in any given instance.’ ”³⁸ Obviously the nihilist will find nothing useful in a Restatement, since neither the generalizations from case law in the Restatements nor anything in the cases themselves, but their facts will be reliable guides to results. For the skeptic, the Restatement formulations may have some utility in guiding lawyers to appropriate rhetoric for argument (and judges for decision), but not much for prediction.

Karl Llewellyn illustrated this type of critique at length in his pioneering casebook on Sales, which contrasts “lump-concept thinking” to “narrow-issue” thinking (the immediate topic is “title” to goods).

Lump-concept thinking moves in terms of wide premises. Decide that on specific facts “title” is in either B or S, and you can then proceed to draw a dozen conclusions, as to risk, price, rules of damages, levy by creditors, etc.; among the dozen will be one deciding the case at hand. And the ruling in one case as to “who had title” is authority for a “like” ruling in another case, though the narrow issues in the two cases are quite different; the emphasis in the deciding and in later use of the holding is on the lump-concept as a lump. … The advantages of narrow-issue thinking and concepts are obvious. … The meaning of a case is always clearer when one knows and states exactly what issue was decided, as well as what ratio decidendi was expressed … Secondly, the policy aspects of the narrow focus come in for observation and study under narrow-issue thinking … The narrow issues that arise on questions “of title” are largely questions involving the allocation of a great number of distinct risks: risk of destruction; risk of disposing of the goods (can S have price, or only damages?); risk of being able to cover in the event of non-delivery … ; risk of B’s insolvency … risk of S’s or B’s dishonesty or bad faith … Narrow-issue thinking leads to weighing these differences as a matter of sense, in order to see whether similar differences should follow in law.³⁹

Some form of the anti-lumping critique was the most common Realist critique of the Restatements.⁴⁰ It emerged frequently in debates within the ALI itself over early Restatements. Perhaps the most famous was Walter Wheeler Cook’s repeated attempts to break down the lump-concept of “domicile” in Beale’s draft Restatement of Conflicts. Beale wanted one definition of domicile for all purposes.⁴¹ Cook responded:

[A]s I see it any concept such as domicil is a tool which lawyers use, judges use, in determining what ought to be done in a concrete situation. As I see it, the same word is used in dealing with a great variety of situations. The reporter has enumerated some of them: Divorce, taxation, jurisdiction to enter a personal judgment, what to do with a man’s personal property when he dies intestate; and other purposes. A judge or court deciding a case always has one of those concrete situations before him. In passing upon the exact scope of the concept as applicable to that case the Judge always has in mind that case and not all the other purposes. I believe that it is extraordinarily unlikely that the court would always draw the line, that it ought always to draw the line delimiting the boundary of the concept at exactly the same place for all these purposes. I do not believe that has happened or ever will happen. I do not believe you can determine the exact scope of any legal concept unless you know what you are trying to do with it …

The court has a concrete problem to solve. It is trying to decide whether the courts of the state should grant a divorce on constructive service; whether the man is sufficiently connected with the State to make that a reasonable thing to do. It may be reasonable to do that, but not reasonable to apply the same concept in the case involving the validity of the provisions of a will. The court has a will to consider, or a divorce, or the administration of an estate, or whatever it may be, and the exact point at which it draws the line is undoubtedly drawn with the concrete problem that they have before them in mind.⁴²

Cook had a similar critique of Williston’s approach to Contracts. Reviewing Williston’s treatise, he quoted a well-known passage from Williston’s own preface to the first edition:

The law of contracts … after starting with some degree of unity now tends from its very size to fall apart. The simplest applications of fundamental principles of contracts when found in an insurance policy or a contract of suretyship are often considered by writers on those topics as peculiarities of the law of insurance or of suretyship, controlled by no general rules. It therefore seems desirable to treat the subject of contracts as a whole and to show the wide range of application of its principles.⁴³

Cook comments that given the realism of Williston’s premises, the conclusion is especially perverse:

Reduced to its lowest terms the assumption is that in so far as the law of contracts “tends to fall apart,” the result is one to be deplored, and counteracted if possible by treatises like the present, designed to show the “unity” of contract law. For example, if in dealing with life insurance contracts courts and writers take the type of transaction into account in reaching their decisions, they are thereby failing to apply the “fundamental principles of contracts” and asserting, at least by implication, that the cases before them are “controlled by no general rules.” If one asks what justification the author gives for this assumption, the answer is that there is no discussion of it at all: it is merely assumed that the alleged “unity” does or at least should exist. The assumption is, of course, one which many at least of the so-called ‘realists’ would at once challenge. They would inquire what warrant there is for assuming, for example, that the formation of a life insurance contract must or should necessarily be governed by some “general principle of contracts” equally applicable to all other types of contract. They would inquire, where do such “principles” come from? Are they distilled from the decisions of the courts? If not, what is their source?⁴⁴

Leon Green made essentially the same point about the Restatement of Torts, to which he had served as one of the ALI’s Advisers, but which he concluded was unsafe for practitioner use.

[T]the negligence doctrines used in firearms cases, in fire cases, in physician and surgeon cases, in traffic cases and other groups of cases are not identical by any means. In other words, doctrines have little integrity of their own. They take on the color of the transactions in which they are used. There is no general norm which will work in all types of cases; that is only a dream of those who have not examined the cases closely. Any supposedly general norm will be found of value only in the cases from which it was developed. The defense doctrine of “consent” is a good example. It is not the same in fight cases, sex cases, and surgical operation cases, but the Restatement treats it as though it were something constant in all these cases. Of course, in widely different cases, as in traffic and employee cases, where the consent doctrine goes under the name of assumed risk, no such thing would be thought of. But the differences are just as vital, though not so easy to see in cases which are not so widely set off.⁴⁵

Green, famously, organized his casebook on Torts⁴⁶ around specific occupations of parties, such as “Occupancy, Ownership, Development of Land,” “Manufacturers, Dealers,” and “Builders, Contractors, Workmen,” “Power, Telephone and Telegraph, Water, and Gas Companies,” “Traffic and Transportation,” and the like, while omitting altogether, except in the interstices of reprinted opinions, traditional doctrinal categories such as causation.

Herman Oliphant, another renegade ALI Adviser, after giving a few examples of his own of how context and situation determine results (e.g., courts will enforce covenants not to compete against former owners on sale of a business, but not against employees), generalized the Realist distrust of abstraction into—what looks at first like a surprisingly reactionary!—paean to the old common law. That is, the common law before the abolition of the writ system, before the advent of analytic jurisprudence and other endeavors to theorize private law. He praises the fact-bound empiricism of stare decisis.

The political virtues of stare decisis are difficult to exaggerate. It has two active qualities, one affording us the counsel of experience; the other, the latitude of trial and error. The first element of its strength and security is its unalterable refusal to indulge in broad speculation, and its untiring patience to keep attention pinned to the immediate problem in order that a wise solution for it may be found. It stoutly refuses to answer future questions, prudently awaiting the time when they enter the field of immediate vision and become issues of reality in order that to their solution may be brought the illumination which only immediacy affords and the judiciousness which reality alone can induce. It is indifferent to broad generalizations or is made apprehensive by them. It accepts few generalizations, narrow or broad, until they have been transmuted into the wisdom of experience by experimentation. It uses generalizations to suggest and to orient that experimentation but not to replace it. The second element in the strength and security of stare decisis is but another aspect of the constant immediacy of its ends. It leads us forward over untried ground, a step at a time, no step being taken until it is judged wise, and the stages of its advance are so short that the direction of march can be quickly shifted as experience dictates.⁴⁷

But as social life became more complex, the legal system reduced the number of actions, and “abstraction and generalization ran riot,” and “absolutes and universals begin to replace mere generalizations. Broad principles begin to spring from few cases. If there be only one case in point and that be in conflict with some implication of our favorite universals, it is wrong—wrong on principle. This search becomes partly one for mere word patterns.”⁴⁸ Efforts like the ALI’s to continually restate the law in the form of broad doctrinal principles are in vain:

Such further restatements will be made necessary by exceptions and conflicts which appear from time to time. They can be reduced and subtended only by expanding present generalizations into yet larger bubbles of unreality. Nothing new and nothing vital lies in this direction. This path inevitably leads to viewpoints more and more remote from life, more and more obsolescent. …

With eyes cleared of the old and broad abstractions which curtain our vision, we come to recognize more and more the eminent good sense in what courts are wont to do about disputes before them. judges are men and men respond to human. situations. When the facts stimulating them to the action taken are studied from a particular and current point of view, which our present classification prevents, we acquire a new faith in stare decisis. From this viewpoint we see that courts are dominantly coerced, not by the essays of their predecessors but by a surer thing, by an intuition of fitness of solution to problem, and a renewed confidence in judicial government is engendered.⁴⁹

But even though Oliphant is arguing that judges, responding to the stimulus of facts of particular cases, do a better job of fitting solutions to concrete problems than the doctrinal theorists and Restaters do, he is certainly not recommending anything like the abandonment of the scholarly enterprise and return to the good old days of parsing cases. On the contrary: the solution is for social science to replace the hit-or-miss empiricism of the old judges with a systematic understanding of how social forces impact the law.

Law teachers should have and law students should get either before or after they come to the law school a comprehensive knowledge of the whole social structure. This should not consist of theories as to domestic. economic and political life nor of unrelated description of disjoined social phenomena. The whole life which law affects should be viewed comprehensively as an interrelation of processes. This understanding cannot be got today by a hit and miss apprenticeship in life any more than living in our bodies can teach us its structure and functioning. Systematized study, deliberately focused toward getting an adequate knowledge of the entire social structure as a functioning and changing but coherent mechanism, is a basic prerequisite.⁵⁰

Oliphant’s ambitious agenda naturally raises the question of whether the Realist critics of the Restatements had anything to propose that the ALI could as a practical matter have undertaken instead. We will return to this question, but for the moment pause to agree with Hanoch Dagan’s judgment that the Realists were not generally against rules but wanted to improve rules by stating them in narrower categories, not individual cases, “relying on empirical data, normative conclusions, and situation sense.”⁵¹

One of the most consistent strands of critique of both Progressive and Realist critics of Formalist (or classical) legal thought was that Formalist judges’ decision of cases on purportedly neutral principles concealed inarticulate policy choices. As Holmes memorably put it in The Path of the Law:

I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious, as I have said. When socialism first began to be talked about, the comfortable classes of the community were a good deal frightened. I suspect that this fear has influenced judicial action both here and in England, yet it is certain that it is not a conscious factor in the decisions to which I refer. I think that something similar has led people who no longer hope to control the legislatures to look to the courts as expounders of the Constitutions, and that in some courts new principles have been discovered outside the bodies of those instruments, which may be generalized into acceptance of the economic doctrines which prevailed about fifty years ago, and a wholesale prohibition of what a tribunal of lawyers does not think about right. I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions.⁵²

The strong version of the claim was that there were no significant differences between private and public law: all private law doctrines distributed wealth and power; all put the power of the state behind some parties and policy choices rather than others they might have chosen instead. Sometimes the implication of that view was that judges should not take sides on burning public-law issues, but should leave major policy decisions to legislatures: this position generally counseled against invalidating statutes on constitutional grounds. But the implication even for common law decision-making was that judges needed to bring distributional conflicts to the surface and have intelligent grounds for deciding one way or another. Even issues involving the most apparently anodyne and innocuous doctrinal rules, such as those of Offer and Acceptance, made it necessary to ask, “What acts are those which will cause society to come forward with its strong arm?”⁵³ As Morris Cohen put it: “A contract … between two or more individuals cannot be said to be generally devoid of all public interest. If it be of no interest, why enforce it? For note that in enforcing contracts, the government does not merely allow two individuals to do what they have found pleasant in their eyes. Enforcement, in fact, puts the machinery of the law in the service of one party against the other. When that is worthwhile and how that should be done are important questions of public policy.”⁵⁴ Some Realists took this position to its logical limits. The lawyer-economist Robert L. Hale redescribed the legal constitution of the market economy through contract-tort-property rules as delegations of state power to some participants to coerce others.⁵⁵ Lon Fuller (a prominent critic of the Realist movement but something of a Realist himself⁵⁶) redescribed all of contract law as founded in tort-like injury to reliance interests.⁵⁷

The first generation of ALI Reporters would probably have subscribed in a very general way to these sentiments, except that they would have considered the great bulk of common law doctrines relatively settled and cases requiring policy argument and decision exceptional and largely limited to anomalous situations and newly arising issues. Fuller wrote a very acute review of Williston on Contracts, which captured this disposition. Fuller started off by accepting that all legal decisions involve questions of policy, but that lawyers and judges save time and difficulty in routine cases by resort to formal doctrines, simple rules that obviate the need to reanalyze policy considerations at stake in every case.

Turning to Professor Williston’s legal method, if we ask at what point he gives up the attempt to shape the law by direct reference to social interests, I think the answer will have to be, at the very outset. What may be called the bases of contract liability, notions like consideration, the necessity for offer and acceptance, and the like, are nowhere in his work critically examined in the light of the social interests they serve. These things are accepted on faith. This neglect to refer to underlying social desiderata cannot properly be called “logic”. It is simply an acceptance of what is conceived to be received legal tradition. It is, if anything, policy, but policy as it is assumed to be crystallized in certain inherited formulae. … Yet if we ask at what point in Professor Williston’s method “policy” becomes relevant, it will be found, I think, that in general he admits “policy” only where “logic” has failed, that is, where a syllogistic marshalling of traditional concepts fails to yield a certain answer, or, occasionally (as in the problem of the offer revoked after the offeree has begun performance of the requested act), where the answer yielded seems too unjust to be acceptable. … Even in this matter of summoning policy as a kind of trouble shooter for logic, I think it can be said that Professor Williston is not, in comparison with his contemporaries, especially inclined to favor policy. He follows a conservative diagnostic practice, and is slow to declare logic in distress. … He is no ardent practitioner of … the manipulation of legal theory to bring about the result conceived to be socially desirable without making explicit the social interests thus served. He shows none of the eager ingenuity of an Ames, a Cardozo, or a Vance, to perform feats of juristic legerdemain in the interest of justice and the better life.⁵⁸

Contrast to the Williston of Fuller’s review, the attitude of Oliphant, in his initially very optimistic vision of the mission of the new ALI. Oliphant notes that the ALI’s mission statement excludes from its remit any attempt to restate law in controverted matters of social policy. He assumes the ALI means such matters as

the rights of the parties in the struggles of labor and capital and the scope of the due-process clause of the Constitution in fixing the limits of social legislation. Just why are such subjects to be excluded? Is it because they are still controverted? It cannot be that, for two reasons: There is almost no field of law but has large unsettled areas. For example, the law of private corporations has large parts still the subject of debate, but it would not be excluded for that reason. In the second place, a restatement of the law will have little utility unless it covers much debated ground, because where the law is almost wholly undisputed, no restatement is needed. If the work of the Institute is to be limited to undebated matters, then one could argue that there is no greater objection to beginning with the law of industrial relations, of due process, than with other branches of the law. Where any of the questions in these subjects have been answered by the courts and answered with substantial unanimity, the emotional conflict is settled and they might just as well be restated.⁵⁹

He goes on to argue that the ALI was right to exclude such issues, not because they are debated questions, but because they

involve social-policy judgments having a marked emotional content. … [But] [t]he exclusion of such questions does not exclude those debated questions having no marked emotional flavor, and such questions cannot be avoided. The Institute in its work will be constantly meeting opposing views on what the law is or should be. While it may state both views, it will have to name one as the better, and, in so choosing, will be stating new law.⁶⁰

And this is where the need for social science makes itself felt:

Until we study the business or social structure affected by law, we must often guess as to which of the two rules work better. Until that study has been made we can only guess as to whether rules of law differ in utility, reason that a large part of the task ahead of us is merely discover which rules of law have a utility not limited to certainty. This can be learned only by studying the structure affected by the body of law.⁶¹

Eventually, having failed to convince his Columbia colleagues to convert the law school into a research institute, Oliphant brought Cook and Yntema with him to the short-lived Johns Hopkins Institute of Law.

Of course not all the Realists turned to empirical social science as a source of enlightenment about policy choices.⁶² Some, like Corbin and most of the Realist-influenced law teachers who followed, were content to hypothesize policy rationales for, or functional purposes of, legal rules from the facts of decided cases. Others, like Llewellyn, drew upon practical experience of commercial customs. But they were all sure that the answers they sought, the “real reasons for the decision,” lay in some part outside the black-letter rules.

Since the breach between the First Restaters and the Realists seems in hindsight to have been inevitable, it’s reasonable to ask why skeptics about the adequacy of legal rules and principles to predict or explain legal outcomes should ever have welcomed the ALI and its projects. Clearly the sponsorship of the leading lights of Progressive and “sociological” jurisprudence such as Pound and Cardozo helped. One sponsor had exceptional influence on the proto-Realists. This was Wesley Newcomb Hohfeld, briefly on the Yale Law faculty before his early death in 1918. Hohfeld’s ideas carried enormous weight with Corbin, Llewellyn, and Cook, among many others, and were treated with reverent respect by the ALI’s founders. Reporters for the First Restatements were instructed to apply Hohfeldian categories and analysis.⁶³ It may seem curious that Hohfeld’s taxonomy of “Fundamental Legal Conceptions,”⁶⁴ an extraordinarily abstract exercise in analytical jurisprudence, such as might have been predicted to be Formalist blather to Realists-in-waiting, should have so impressed them. But the oddity vanishes when one appreciates what Hohfeld did, which was to disambiguate general notions of “rights” and to reanalyze them as operative legal relations. What did it mean for someone to have a right? In whom, if anyone, did it give rise to a legal duty to respect the right? To whom, if anyone, did it give a remedy for infringement of the right, and what remedy? Hohfeld’s acolytes perceived this schema as a powerful tool for identifying latent policy choices underlying legal doctrines. Cook provided an especially telling example of this method by applying Hohfeldian analysis to the U.S. Supreme Court’s decision granting an injunction against the United Mine Workers for trying to recruit into their union at-will employees of a mine who had been required to sign yellow dog contracts promising not to join a union.⁶⁵ Cook used Hohfeld’s categories to ask if the mining company had a right, protectible by an injunction or damages, against the union; or whether the right was merely a privilege, like the privilege to set up a competing business regardless of the injury to a competitor. This was the important policy choice in the case, and it could not be avoided by a conclusory declaration of a “right” in the employer whose correlative was a duty to abstain from interfering with the right.⁶⁶

Yet as the First Restatements gradually appeared, they made only limited and selective use of Hohfeldian terms and categories.⁶⁷ In any case, the main use of Hohfeldian analysis was to bring concealed policy choices to the surface. It could not tell you how the policy choices were to be made. That would require a different sort of science, and the lawyers were divided about whether to hand off that set of tasks to another group of specialists, like economists or sociologists or behavioral psychologists, or to try to do it themselves. The ultimate compromise, adopted by most Realist legal scholars in the 1940s and 1950s, was to borrow snippets of concepts and insights from neighboring fields and to add “and Materials” to the “Cases” of the casebooks.⁶⁸

One prominent Realist supplied a positive justification for the ALI’s projects, albeit in an ironic and backhanded way. This was Thurman Arnold. A colleague of Arnold’s at Yale, the psychologist Edward S. Robinson,⁶⁹ wrote a book in 1935 analyzing law and lawyering and judicial decision-making from the viewpoint of psychology. Not surprisingly, this analysis revealed myriads of influences on judicial decisions besides those officially stated as reasons, many unconscious or unacknowledged, some consciously suppressed because thought illegitimate or because of confirmation bias or prejudice. Robinson called for an objective science of law that would undertake to study these influences on judicial behavior. As things are now, “legal knowledge and legal education are so organized that students are trained to look at the priests of the law rather than anthropologists seeking an accurate understanding of a tremendous significant type of human behavior.”⁷⁰ Robinson believed that the ALI’s Restatement projects were antithetical to this form of scientific inquiry. The Reporters looked at conflicting cases and presumed to decide “what the law really is.” They suppressed uncertainty by purported authoritative fiat.

[T]he undertaking … is plainly founded upon the belief that too much truth about the law is disastrously confusing and that the remedy may be found in an authoritative suppression of the facts rather than in better education of the public and the bar as to the actual psychological and sociological nature of the law. … There is some reason to believe that it would be easier and more satisfactory to learn law by random sampling of the cases with all their contradictions and complexities than by reading the abstract propositions in the volumes issued by the Institute.⁷¹

To Herbert Goodrich, the dean and eventual federal judge who was gradually taking over the ALI’s leadership from William Draper Lewis,⁷² these were fighting words (all the more so, I imagine, because of their superior and condescending tone). Goodrich protested that a good deal of thought and effort from the best minds in the profession had gone into the Restatements, and that although of course they were fair game for criticism, it was outrageous to attribute dishonesty, and absurd to propose random sampling of cases as a substitute.⁷³ Thurman Arnold stepped into the fight. He observed that this was a dispute between priests and anthropologists, between those engaged in a practice taking its practitioners’ internal point of view and naturalistic observers of the practice from outside.

This spiritual trouble would be avoided if the scholar realized that there is need for both a science of law and a science about law—the one for ceremonial use inside the institution and the other for observation from above. An objective or naturalistic attitude toward human institutions is one that can be taken only by one writing about them from the outside. … An objective history of a church can scarcely be written by its bishop, if he wishes to maintain the church as it is. He may use the understanding which he derives from such an attitude in order to make the operation of the church more effective, but while he is on the public stage he must play his part in accordance with the assumptions underlying the lines which he speaks. …

The symbols of the law, both primitive and modern, arise out of a series of contests which dramatize the various conflicting ideals hidden under the term “justice.” Out of those contests parables are spun, and maxims derived which reflect the contradictory moral and economic notions of the man on the street. These maxims can never get far from those notions, or the man on the street will complain of the law as unjust or uneconomic. The man on the street is not one character, but a whole cast of characters. His firmly held beliefs contradict each other, and he reconciles them in mysticism, or loses them in elaborate dialectic. The most important institution wherein such conflicts are reconciled, either by ceremony or logic, is the judicial system. It cannot, therefore, be a place where hard, cold truth is sought, yet it must be a place where everyone thinks that truth is searched for. …

We dramatize that rule of law in our judicial system and in our constitution. We do not conduct parades as they do both in England and Japan. Our ceremonies are built on the pattern of a feast of pure reason. The spectacle of a hundred or so prominent lawyers and scholars sitting in a great hotel listening to the Restatement discussed section by section is congenial to our protestant way of looking at the symbols of our government.⁷⁴

Now Arnold was an inveterate joker, but his satirical style concealed a serious point. Governance, he believed, especially in a time like the 1930s of bitter social division and political controversy, required stabilization and reassurance of the populace through the manipulation of symbols. Both law and economics painted pictures of an ideal but imaginary order of free-market capitalism under the rule of law, administered by benevolent elites. Examples of such symbols are the fiction that giant enterprises are just like competitive small proprietors, the ritual of the criminal trial and the appearance of subjugation of administrative agencies to judicial review.⁷⁵ The ALI enterprise was also such a symbol. The actual messiness, the inescapable conflicts, and the distributional stakes of law could be hidden behind a public drama of grave authoritative pronouncement of consensus on best legal practices. Arnold’s picture of the symbolic functions of the ALI was actually not all that distant from that of the ALI’s own founders, who believed that in a time of great “popular dissatisfaction with the administration of justice”—in the words of Pound’s famous speech (1906) that had inaugurated the movement for moderate law reform resulting in the ALI—the public needed the reassurance that only a visible and concerted effort of the great and good could give it, that the defects in the legal system were being corrected, all to the aim of securing more perfect justice.⁷⁶

The answer at first seems fairly plain. Most of the Realist critics were thinking within a different conceptual frame from the Principal Reporters of the First Restatements, even though, since they were all lawyers who had been trained in much the same way, they had a lot of language in common.

The Restaters could seemingly have accommodated some of the milder critiques, such as that the dogmatic form of the Restatements concealed disagreements about the best rules, and that these conflicts should be openly discussed in comments, along with reasons for adopting the rule chosen. (This was to have been one of the functions performed by the abandoned project of the treatises.) The Restaters could have been more aggressive about law reform, more ruthless in pruning the common law, especially the law of property and trusts, of its archaic or obsolete doctrines—but at the cost of alienating practitioners. They could have been more consistent in incorporating Hohfeldian terms and categories (one of their announced aims)—again however at the cost of trying to impose on practitioners an unfamiliar system and jargon.

Could they have done more to meet the core Realist claim that the black-letter rules and principles were too general and abstract, and thus failed to accurately reflect the variations in factual context that led, in the case law, to varied results? That would obviously have been difficult to do without defeating the aim to synthesize out of the existing cases fields of unified legal principles such as Contracts and Torts. Sometimes the Realists seemed to talk as if all decisions were uniquely determined by the facts of individual cases, so that no generalizations were possible. But that position was rare: the Realists certainly thought that decisions were patterned and that the patterns were discoverable by investigation. But the problem for them was that the investigations had not been done, had barely even been started, and their confident proponents—as they were to discover—had massively underestimated the difficulties of conducting them. The mission, after all, was to use sociology to discover the conflicting “interests” at stake in the formulation of a legal rule, psychology to discover the motivations of judges, and ethics and economics to assess the policy aims of the law and the actual consequences of the law in action (which incidentally would also require further research into the army of officials and laymen who applied it). Yet if fields of legal doctrine were really only miscellaneous collections of policies, was there any point into trying to “restate” them?⁷⁷ Several of the leading Realists thought not, and that a better way of implementing their view of law as policy was to sign up for the New Deal.⁷⁸

Despite such obstacles as these, the next generation of ALI Reporters partially accommodated their Realist critics and imported their approaches into the Restatements and Uniform Code projects of the postwar era. A scaled-down version of Realist method suggested that the cases themselves often supplied enough data about their factual context to allow scholars to find general factual patterns determining results—and this was the method used by Corbin, Cook, and Llewellyn, among others. In drafting the Uniform Commercial Code’s Article 2 on Sales, as is well known, Llewellyn solved the problem—with how much success is much debated among Contracts scholars—of reconciling the need for generality in legal statement, but for particularity in adjudication, by framing the law in terms of broad standards (“reasonable,” “good faith,” etc.) and relying on merchant custom (and in his original plan for the Code, merchant tribunals) to fill in the particulars.⁷⁹ Another bold simplifying move, which Williston would surely have approved would have been for the Restaters to assert that their rules, whether or not they accurately expressed the state of the existing law, or the emerging law, were definite enough, if treated as codes, to guide the bench and bar and the bar’s clients to certain and predictable results.⁸⁰

In many other ways the Second (and later) Restatements managed to take a moderate Realism on board without being swamped by it. They are much more candid and explicit at articulating the policy, or “functional,” rationales for legal rules, and consequentialist arguments for evaluating them. They accommodate diverse policy objectives and factual variations by resting legal rules as broad standards and multifactor balancing tests. They do not shrink from confronting highly controversial policy choices—sometimes at the cost of setting off fierce struggles for contending views among the ALI’s constituencies—and taking sides. They are much more likely than the First Restatement generation to consult and cite empirical evidence supporting their views. They don’t steer clear of legal fields thickly grown with statutes, and they direct their recommendations to legislatures and law reformers and members of Rules Committees as well as to common law courts.

“One phase of legal realism,” however, as Edwin Patterson noted in 1933,

will not lend itself to translation in terms of the Restatement: the so-called psychoanalysis (not exclusively Freudian) of judicial decisions. A decision for defendant motivated by the judge’s prejudice against a Democratic plaintiff or a labor union plaintiff can be rationalized by quoting general principles; but the genuine motives are incompatible with the use of those principles or rules which are regarded as legitimate guides in the process of deciding. The legal system, because it is designed to exclude such illegitimate motivation, fails to take it into account. The study of illicit judicial motivation looks to choice of personnel (by electorate or appointing official, by lawyer choosing the venue of trial) rather than to choice of rules, to politics and advocacy rather than to law.⁸¹

This mode of Realism eventually found its disciplinary home in the “judicial behavior” school of Political Science.

To return now to where we started: Careful historians of legal thought know better than to identify the founding jurists and Reporters of the ALI with “Formalism” as it was described and caricatured by the legal Realists. Those founders themselves were legal Progressives, “social” jurists, and law reformers.⁸² The choices and compromises to which they committed themselves, however, in producing the first Restatements, wedded them to a product that was in form, if not in theory, hard to distinguish from a Formalist code. A view of law that limits the relevant universe of study to the rules announced in appellate cases and carefully excludes from its purview all other fields, may not be classical Formalism, but is certainly intellectually parochial.

The Realist Felix Cohen, in his well-known polemic against the “Transcendental Nonsense” that he believed characterized the First Restatements, ended it with a prophecy:

The age of the classical jurists is over, I think. The “Restatement of the Law” by the American Law Institute is the last long-drawn-out gasp of a dying tradition. The more intelligent of our younger law teachers and students are not interested in “restating” the dogmas of legal theology. There will, of course, be imitators and followers of the classical jurists, in the years ahead. But I think that the really creative legal thinkers of the future will not devote themselves, in the manner of Williston, Wigmore, and their fellow masters, to the taxonomy of legal concepts and to the systematic explication of principles of “justice” and “reason,” buttressed by “correct” cases. Creative legal thought will more and more look behind the pretty array of ‘”correct” cases to the actual facts of judicial behavior, will make increasing use of statistical methods in the scientific description and prediction of judicial behavior, will more and more seek to map the hidden springs of judicial decision and to weigh the social forces which are represented on the bench. And on the critical side, I think that creative legal thought will more and more look behind the traditionally accepted principles of “justice” and “reason” to appraise in ethical terms the social values at stake in any choice between two precedents. “Social policy” will be comprehended not as an emergency factor in legal argument but rather as the gravitational field that gives weight to any rule or precedent, whether it be in constitutional law, in the law of trade-marks, or in the most technical details of legal procedure.⁸³

A reasonably accurate prophecy, except in one respect. All these currents of thought are represented in current scholarship and thinking about law. Yet the work of doctrinal rationalization, and of Restatement, continues.