Langdell’s Orthodoxy

Thomas C. Grey

It seems natural to begin the history of modern American legal thought in

1870. In that year, Oliver Wendell Holmes, Jr., in the first words of his first major
essay, wrote “It is the merit of the common law that it decides the case first, and
determines the principle afterwards.”1 In the same year, Christopher Columbus
Langdell joined the faculty and became the first Dean of the Harvard Law
School. Teaching his first class in Contracts, he began not with the customary
introductory lecture, but by asking “Mr. Fox, will you state the facts in the case
of Payne v. Cave?”2
Holmes’ words broke with orthodoxy and anticipated legal realism by find-
ing merit in intuitive case-by-case adjudication. But what did Langdell’s twin
debut as Dean and teacher have to do with the beginning of modern legal
thought? Two connections are fairly obvious. First, the method of teaching
that Langdell launched in his first Contracts class, by shifting the focus of legal
instruction from abstract principles to cases, ended up promoting the same

* This article originally appeared in University of Pittsburgh Law Review, Vol. 45:1 (1983–1984)
pp. 1–53.
** Professor of Law, Stanford University. This is a much-expanded version of the Mellon Lecture
delivered at the University of Pittsburgh School of Law on October 28, 1982. Financial sup-
port for the research was provided by the Stanford Legal Research Fund, made possible by a
bequest from the Estate of Ira S. Lillick and by gifts from Roderick M. and Carla A. Hills and
other friends of the Stanford Law School. I am grateful for the research assistance of Carl
Ruggiero and Walter Johnson and for the typing and retyping of Ann Babb. My thanks to the
colleagues and friends—too many to name—who made helpful comments on earlier drafts,
and extra thanks to those whose criticisms got me to make substantial changes: Barbara
Babcock, John Ely and Bob Gordon. Due to the specialized nature of the sources used, the
author has certified to the University of Pittsburgh Law Review the accuracy of a substantial
amount of the bibliographical information.
1 Holmes, Codes, and the Arrangement of the Law, 5 Am. L. Rev. 1, reprinted in 44 Harv. L. Rev.
725 (1931).
2 Langdell was named Dane Professor in January, 1870, and taught courses in Negotiable Paper
and Partnerships in the spring of that year, apparently by the traditional lecture method.
2 C. Warren, History of the Harvard Law School 359, 363 (1908). He was named first
Dean in September, id. at 370–71; and gave the first case-method class that fall, id. at 372–73.

© koninklijke brill nv, leiden, ���4 | doi 10.1163/9789004272897_005

LANGDELL ’ S ORTHODOXY 47

modern case-centered view of adjudication that Holmes had stated.3 Second,

during his Deanship, Langdell created at Harvard the model for the standard
American three-year graduate law school staffed by a career faculty committed
to research that has since been the institutional basis for the development of
modern legal thought.4
The third connection between Langdell’s debut and the beginning of the
modern era is more obscure. As Langdell taught his course in Contracts, and
later as he and his many colleagues and disciples carried on all their teaching
and writing,5 they promulgated a distinctive system of legal thought that I call
classical orthodoxy.6 But what is modern about this classical orthodox system?
Is it not the very antithesis of modernity in legal thought?

3 This was a common observation of later critics who traced the Legal Realist “jurisprudence
of the hunch” back to the pedagogy of the case. See, e.g., Dickinson, Legal Rules: Their Function
in the Process of Decision, 79 U. Pa. L. Rev. 833, 846 (1931); Lucey, Natural Law and American
Legal Realism, 30 Geo. L.J. 493, 526 n. 67 (1942). Marcia Speziale has imaginatively expanded
on the point while reversing the perspective, treating Langdell as a proto-Realist hero, in
Speziale, Langdell’s Concept of Law as Science: The Beginnings of Anti-Formalism in American
Legal Theory, 5 Vt. L. Rev. 1 (1980). One must avoid identifying Langdell’s pedagogic innova-
tions with his jurisprudence; the two were independent, in the sense that articulate critics of
the latter were at the same time defenders and practitioners of the former. See O. Holmes,
Collected Legal Papers 42–43 (1920) [hereinafter cited as Holmes, Collected Papers];
Gray, Methods of Legal Education, 1 Yale L.J. 159 (1891); and see infra text accompanying note 83.
4 On the establishment of Langdell’s model at Harvard, see 2 C. Warren, supra note 2, at 354–
418, 428–53. Chase, The Birth of the Modern Law School, 23 Am. J. Legal Hist. 329 (1979)
stresses the large role that Langdell’s patron, Harvard president Charles Eliot, played in the
process. For Eliot’s own account, see Eliot, Langdell and the Law School, 33 Harv. L. Rev. 518
(1920).
On the spread of the Langdellian model of the law school beyond Harvard, see, for a gen-
eral account, Stevens, Two Cheers for 1870: The American Law School, in 5 Perspectives in
American History 405, 426–35 (D. Fleming & B. Bailyn eds. 1971); and for case-studies,
J. Goebel, Foundation for Research in Legal History, A History of the School of
Law, Columbia University 131–58 (1955), and W. Johnson, Schooled Lawyers (1978).
5 James Barr Ames, Joseph Beale and Samuel Williston, junior colleagues of Langdell at
Harvard, were the most important of his disciples in classical orthodoxy.
6 “Orthodoxy” refers loosely to the view, held more or less and in different forms by lawyers at
all times, that legal judgments are made by applying pre-existing law to facts. I take the term
“classical” (and much more than the term, see infra note 176) from D. Kennedy, The Rise and
Fall of Classical Legal Thought, 1850–1940 (1975) (unpublished). See also Kennedy, Toward an
Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in
America, 1850–1940, 3 Research in Law and Sociology 3 (1980); and Kennedy, Form and
Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685, 1728–31 (1976). Kennedy’s line
between “classical” and “pre-classical” legal thought roughly corresponds to Llewellyn’s