The Common Law Tradition

A Collective Portrait of Five Legal Scholars

George Liebmann

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351484800
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

This book commemorates a place and a time in American law teaching, but more importantly, an outlook: the common law tradition. That outlook was empirical and tolerant. These values were carried into expression by a group of people who were not part of a cult or faction nor ruled by the herd instinct. Now in paperback, The Common Law Tradition is a collective portrait of five scholars who epitomize the tradition.The focus is Chicago in the 1960s. The five figures considered--Edward H. Levi, Harry Kalven, Jr., Karl Llewellyn, Philip Kurland, and Kenneth Culp Davis--did much to broaden the perspectives of the legal academy. Levi made use of sociology, economics, and comparative law. Kalven collaborated with sociologists on the Jury Project and with economists on tax law and auto compensation plans. Llewellyn's commitment to empirical research underpinned his work on the Uniform Commercial Code. Kurland's approach to constitutional law was highlighted by his insistence on the relevance of legal history. Davis was an energetic comparativist in his work on administrative law. What distinguished these Chicagoans is that their work was practical and rooted in the law, and hence yielded concrete applications. The group's diversity, the tolerant atmosphere in which they taught and wrote, and the attachment of its individual members to empirical approaches differentiate them from today's legal scholars and make their ideas of continuing importance.

1

Edward H. Levi

Edward Levi was a child of the University of Chicago. Born in 1911, he was a graduate of its Laboratory Schools, its College (at the time he attended the university it was in the throes of transition to the famous Hutchins college),¹ with its emphasis on a core curriculum in which the classics of Western political thought and literature were studied in chronological sequence, and its Law School. Along with Whitney Griswold of Yale, he was probably the greatest of postwar American university presidents, preserving, at least for a time, the distinctive ideals of independence, free inquiry, and curricular focus associated with his great predecessors, William Rainey Harper and Robert Maynard Hutchins. As attorney general of the United States for two years during the Ford administration, he labored to restore an appreciation of the separate domains of law and politics.² He also sought to reinforce the institutional safeguards of American liberty: federalism and the separation of powers; his successors have eroded but not completely destroyed his legacy.³ His concerns centered less on individual rights than on the structure of divided and separated government that protected them, and that distinguishes the United States from a myriad of dictatorships with “parchment barriers” supposedly guaranteeing individual rights. His third great role, here considered, is that of the impresario, but not the founder, of a remarkable law faculty, whose influence on modern American government is the subject of this book.

Levi’s central concerns were with the legal process, not with political outcomes. His Introduction to Legal Reasoning still remains the best short description of the common law method. While he regarded case law, statutory interpretation, and constitutional adjudication as separate domains, his description of the common law technique has great contemporary relevance. As applied to constitutional adjudication, it provides a way out of today’s sterile and ever more fanatical controversies between “originalists” and exponents of a so-called “living Constitution.” Levi presupposed a system that proceeded by gentle stages, not by violent leaps; that was a “moving classification system” deriving its legitimacy from its assimilation of precedent and its progressivism from the direction of movement, objectively derivable from actions of the political branches of government.

While his concerns were similar to those of the “legal process” school at Harvard, his vision was broader. In legal education, he was a pioneer in the assimilation of law and the social sciences. While similar attempts were made at Yale, there law was swamped by social science and its bastard cousin, politics. At Chicago the visions of the economists and others were kept more earthbound, accounting for the fertility of the “law and economics” program, the relative success of the Chicago jury project, and Chicago’s role as nursery for a number of prominent comparativists and legal historians. His approach to public office likewise showed broad vision; he was concerned with institutions, not partisan advantage.His father and grandfather were both rabbis; his mother was described by one of his contemporaries as “a dignified woman of friendly but firm views.”⁴ Although he was not particularly observant in matters of religion, the influence of this heritage was reflected in one of the most notable of his speeches, that to the Jewish Theological Seminary of America in 1968.⁵ Emil Hirsch, his grandfather, was appointed to the original Chicago faculty in 1892 and was a close friend of Harper.⁶

Following graduation from law school where he was editor-in-chief of its law review (the traditional law school of Mechem, Hall, Freund,⁷ Bigelow, and Bogert), Levi became a Sterling Fellow at the Yale Law School. There he became associated with a group of younger faculty, including Friedrich Kessler, Charles Gregory, and William O. Douglas. Levi was thus socially as well as intellectually a part of the “realist” movement centered at Yale, which sought to adapt the law to changed conditions through empirical study of them. Hutchins planned to have Wilber Katz of the Chicago Law Faculty, together with Levi, Gregory, and Douglas, teach a fourpart corporation law sequence at Chicago entitled, in reflection of Depression-era concerns, “Losses, Management, Finance, and Reorganization,” with parallel courses on Allocation of Risk and Labor Law. When Douglas went to Washington instead of Chicago this design fell through, but Levi in 1936 joined the faculty—which then included Katz, Kessler, Gregory (a labor law specialist), the contracts scholar Malcolm Sharp, the comparativist Max Rheinstein, the economist Henry Simons,⁸ and the constitutional iconoclast William Winslow Crosskey—as assistant professor. The school sought to introduce a four-year curriculum, with an intensive writing program in the first year and an industry study in the fourth. The New Plan was introduced in 1937; although the fourth-year program was soon eliminated, the faculty group according to Levi was “able, diverse and in retrospect more appreciative and tolerant of each other than might have been expected;” Chicago remains one of the more collegial law faculties to this day. According to Levi, “some of us enlisted for study of economics under the gentle tutelage of Henry Simons, and also for reading of Aristotle and Plato and St. Thomas under a less gentle tutor, Mortimer Adler.”⁹ In a tribute to Katz, who served as dean from 1939 to 1950, Levi extolled qualities that were his own touchstones: “he sought the long-run implications and the knowledge that other disciplines might usefully bring to law…he shared his enthusiasm and to a large extent he shared his doubts.” Most of all, he had “appreciation for the work of others [and] would never make a decision for a meretricious reason.”¹⁰

While at Yale, Levi had collaborated with the federal procedure scholar James William Moore on two major projects. The first of these gave rise to two lengthy articles in the Yale Law Journal on intervention in federal litigation;¹¹ the second was a revision of Gilbert’s Collier on Bankruptcy,¹² which gave rise to a three-part comparative survey of recent developments in English, Canadian, and American bankruptcy legislation that appeared in the University of Chicago Law Review.¹³ The writers stressed that when the legal structure has been well designed, an economic crisis is not apt to result in appreciable change. This was borne out by the English and Canadian experience. American legislation, by contrast, was

[t]emporary in character, hastily conceived, and none too successful…the problem of reorganization is basically a problem of protection of credit. In the corporate field this can only be done by control over the original corporate structure. The new legislation already shows the desire of the framers to control the corporate structure after reorganization. This logically leads to control before reorganization…. The reorganization sections may become simply federal debtor laws and federal incorporation acts.

This drastic suggestion has not been realized and fits badly with Levi’s later dislike of needless federal regulation. The articles on intervention concluded with another suggestion relating to large bankruptcy cases that retains continuing pertinence: “It should be possible for a court to anticipate the amount of fees to be allowed in a particular reorganization; the fact that intervention is often sought solely to gain the allowance of fees by the court could be taken care of by such a procedure.”¹⁴ Both of these major studies, though based largely on “law in the books,” had an empirical cast.

Thurman Arnold and Antitrust

In 1940 Levi joined the Antitrust Division of the Department of Justice, then led by Thurman Arnold, who in the late 1930s produced a level of antitrust enforcement not seen since the Progressive era, with major actions against the motion picture, tobacco, and aluminum industries, among others. Previously, Robert Hutchins had promised Levi to take him to Washington if Hutchins succumbed to FDR’s repeated urging that he go on the Securities Exchange Commission.¹⁵ Earlier, Levi had published a law review article on Arnold’s writings, with the title “The Natural Law, Precedent, and Thurman Arnold.”¹⁶ Natural law, a concept generally associated with Roman Catholic writers, as seen by Levi was a modest doctrine: “An idea of natural law which assumes that somehow or other men may see clearly natural rights which apply in specific cases is not the idea of natural law which we wish to espouse.”¹⁷ The doctrine had three essential precepts: Aquinas’ admonition that “[t]he good for men is to seek to know the truth, to live in society, and to harm no one,”¹⁸ and those of Aristotle: “Justice is equality, or the giving to every man his due” and its corollary:

Justice is the distribution of earthly goods in the state according to some standard set by the state. Corrective justice restores the balance upset by one man’s misdeed. Apparently the distribution of earthly goods is a function of the basic constitution of the state and of the legislature. Corrective justice is more properly the function of the court or the impartial wise man…there must be equity applied to the particular case which does not fit into the general rule. Once equity has been administered, a new rule has been created, and a new distribution of goods is effected. The judiciary in administering equity has administered distributive justice.¹⁹

Levi’s reconciliation of the three subjects of his title was as follows:

Mr. Arnold in his Symbols of Government is happy with the end of the doctor which is to cure people, and he laments the fact that lawyers have allowed themselves to become enslaved to concepts forgetting their practical purpose. The end of the lawyer is to do justice…. If we would be slave to that concept and no other, we would have a guarantee of freedom which we do not now have. We would not be deceived into believing that the natural law can be stated in more specific terms, nor that we can dispense with the natural law and rely on precedent. We would be willing to use the slogans of a coming era but always for the purpose of doing justice as we see it.²⁰

It would be accurate to say that Levi never departed from this description of the legal system; for him, the distinction between corrective and distributive justice was a critically important distinction. As for realism, “I didn’t think it was a wonderful thing just to gather a lot of facts and not know why you were doing it... On the other hand, I was very much interested in what Thurman Arnold was doing...his approach to law was that of an anthropologist.”²¹

Book Five of Aristotle’s Nichomachean Ethics defines the distinction important to Levi, a distinction also discussed in Aquinas’ Summa Theologica.²² Corrective or commutative justice is about restoring the status quo: the punishment of crime, the provision of restitution to civil tort and contract litigants to restore them to the position that they reasonably expected to occupy. Distributive justice, by contrast, sought to alter the positions of persons or classes in conformity with moral ideals...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Preface
• Introduction
• 1 Edward H. Levi
• 2 Harry Kalven, Jr.
• 3 Karl Llewellyn
• 4 Philip Kurland
• 5 Kenneth Culp Davis
• Conclusion
• Bibliography
• Table of Cases
• Index
• About the Author