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chapter 3 Scholar, 1870–1881 In the three decades after leaving New York City and joining the hls faculty, Langdell made reforms in five distinct but interrelated areas. Each constituted a radical change; together, they initiated a revolution in American professional education. In scholarship he set a higher standard for the faculty; in the classroom he made enduring innovations in pedagogy; in hiring professors he introduced an unprecedented strategy and criterion; in academic administration he overcame determined opposition to establish meritocratic structures and policies; in the entwined issues of institutional finance and student recruitment and culture he reversed the prevailing logic and norms. The following five chapters relate the complicated story in each of these areas successively, though the reader should bear in mind that Langdell worked simultaneously on all these endeavors. This chapter explores Langdell’s scholarship during the 1870s when he produced closely related works on contracts and sales that exercised seminal influence both pedagogically and jurisprudentially.1 The novel genre of his casebooks on contracts and sales introduced case method teaching into American professional education , while these works, together with his doctrinal summaries, placed Langdell with Frederick Pollock, William R. Anson, and Oliver Wendell Holmes Jr. as the leading theorists of contracts during its “golden age” in Anglo-American law.2 Specifically, Langdell made five signal contributions to jurisprudence through his writings on contracts in the 1870s. First, he sought to identify abstract, parsimonious dimensions of contract; second, he identified offer, acceptance, and consideration as those dimensions; third, he advanced the distinction between sales and contract in the United States; fourth, he refuted the will theory and 1. Further discussion and documentation on various points can be found in Kimball, “Langdell on Contracts and Legal Reasoning.” 2. Quotation is from Friedman, History of American Law, 275. See Hurst, Law and the Conditions of Freedom, 10. Scholar 85 introduced the bargain theory of contract; and, fifth, he promulgated the distinction between bilateral and unilateral contracts.3 Notwithstanding these contributions—indeed, partly because of Langdell’s introduction of parsimonious abstraction—Holmes famously charged that Langdell considered formal, logical consistency to be the sole standard in making or evaluating legal decisions. But Langdell’s characteristic mode of reasoning in the field of contracts and, more broadly, in jurisprudence is actually three-dimensional, exhibiting a comprehensive yet contradictory integration of induction from authority, deduction from principle, and analysis of justice and policy. The contradiction lies in Langdell’s combining all three while claiming to emphasize logical consistency and to disregard justice and policy. Langdell’s mode of reasoning therefore fits not Holmes’s critique but rather the “paradox of form and substance” that has been considered one of Holmes’s greatest insights about judicial reasoning. Langdell fell into this paradox fundamentally due to his desire to elevate and legitimate legal practice and the legal profession through demanding legal education . Believing that lawyers must acquire a strong knowledge of legal science, which he associated with logical consistency, Langdell presented legal arguments in formal terms, while he also considered, though sublimated, justice and policy, and recognized the fact that legal decisions sometimes incorporate fictions. Casebooks on Contracts and Sales (1870, 1871, 1872) In the late 1860s the long-reigning gentlemanly professors at hls—Joel Parker, Theophilus Parsons, and Emory Washburn—were nearing the end of their triumvirate . Parker, the first to go, resigned in 1868 after twenty years of service and was replaced by Nathaniel Holmes, a justice on the state supreme court of Missouri. Judge Holmes extended the line of distinguished but unscholarly lawyers on the hls faculty and enjoyed “very congenial intimacy” with Parsons and Washburn and with notable lawyers on the Harvard governing boards, such as George Bigelow.4 But Holmes’s appointment worsened the discontent already 3. Two decades later, Langdell produced one more writing on contracts [“Mutual Promises as a Consideration for Each Other” (1901)], in which he hotly rebutted the charge made by Samuel Williston [“Successive Promises” (1894), 35], that Langdell had overlooked the logical fallacy of “mutual promises [serving] as a consideration for each other.” Frederick Pollock called Langdell’s rebuttal “a masterly reply” in “Afterthoughts on Consideration” (1901), 422. But compare Bronaugh, “Secret Paradox of the Common Law.” 4. Quotation is from N. Holmes, Journal, 276. See 273. No relation to Oliver W. Holmes Jr., Nathaniel Holmes graduated from Harvard College in 1837 and HLS in 1839, and built a successful legal practice in Missouri before joining the court. His only scholarly endeavor was an...

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