Academic

Grossman on Anti-Codification

By Lawrence Solum

Lewis A. Grossman posted Langdell Upside-Down: James Coolidge Carter and the Anticlassical Jurisprudence of Anti-Codification on SSRN in 2006, but Brian Tamanaha's recent work highlights the importance of Grossman's important paper.  Here is the abstract:

At the end of the nineteenth century, the American legal community engaged in an impassioned debate about whether the substantive common law should be codified. The American codifiers, like their civil law counterparts in Europe, sought to make the law largely judge proof by reducing the function of courts to the nondiscretionary application of clearly stated statutory principles and rules. By contrast, codification opponents, led by James Coolidge Carter, fought to preserve the centrality of courts in the American legal system. In light of the influential scholarship portraying Gilded Age law as dominated by Langdellian classical legal thought, one might think that these defenders of the common law valued judges' ability to construct a conceptually ordered legal structure and logically deduce the answers to cases from general principles. In fact, however, the leading codification opponents did not portray common law judging as a formal, mechanical, and amoral process, for these were the very characteristics of codification that they condemned. Instead, these practitioner-jurists praised the common law as a system that, unlike codification, permitted judges to decide each case fairly according to its particular facts. The anticodifiers' portrait of common law decision making thus bore little resemblance to the soulless deductive reasoning often thought to characterize the era. Anticodification literature depicted judging primarily as an exercise in ethics. Moreover, it stressed the indeterminacy of rules and the fact-specificity of justice in a way that anticipated legal realism. The article explores the heretofore unexamined similarity between late nineteenth-century anticodification jurisprudence and twentieth-century legal realist jurisprudence, and, finally, suggests that both reflected a practice-oriented ethos.

I would love to share some more of this with you, but unfortunately the PDF is either an image file or has copy locked out.  So, I just need to urge you to read it for yourself, and especially to read the conclusion.

Highly recommended!

Full post as published by Legal Theory Blog on May 06, 2008 (boomark / email).