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John Henry Schlegel - American legal realism and empirical social science

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John Henry Schlegel recovers a largely ignored aspect of American Legal Realism, a movement in legal thought in the 1920s and 1930s that sought to bring the modern notion of empirical science into the study and teaching of law. In this book, he explores individual Realist scholars efforts to challenge the received notion that the study of law was primarily a matter of learning rules and how to manipulate them. He argues that empirical research was integral to Legal Realism, and he explores why this kind of research did not, finally, become a part of American law school curricula. Schlegel reviews the work of several prominent Realists but concentrates on the writings of Walter Wheeler Cook, Underhill Moore, and Charles E. Clark. He reveals how their interest in empirical research was a product of their personal and professional circumstances and demonstrates the influence of John Deweys ideas on the expression of that interest. According to Schlegel, competing understandings of the role of empirical inquiry contributed to the slow decline of this kind of research by professors of law.A UNC Press Enduring Edition -- UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.

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title American Legal Realism and Empirical Social Science Studies in Legal - photo 1

title:American Legal Realism and Empirical Social Science Studies in Legal History
author:Schlegel, John Henry.
publisher:University of North Carolina Press
isbn10 | asin:0807821799
print isbn13:9780807821794
ebook isbn13:9780807864364
language:English
subjectJurisprudence--Research--United States--History, Jurisprudence--United States--Methodology, Law--United States--Methodology, Social sciences--Research--United States--History.
publication date:1995
lcc:KF380.S34 1995eb
ddc:349.73/01
subject:Jurisprudence--Research--United States--History, Jurisprudence--United States--Methodology, Law--United States--Methodology, Social sciences--Research--United States--History.
Page i
American Legal Realism And
Empirical Social Science
Page ii
STUDIES IN LEGAL HISTORY
Published by the University of North Carolina Press
in association with the American Society for Legal History
Thomas A. Green and Hendrik Hartog, editors
Page iii
JOHN HENRY SCHLEGEL
American Legal Realism And
Empirical Social Science
University of North Carolina Press / Chapel Hill & London
Page iv
1995 The University of North Carolina Press
All rights reserved
Manufactured in the United States of America
The paper in this book meets the guidelines for permanence and durability of the Committee on Production Guidelines for Book Longevity of the Council on Library Resources.
Library of Congress Cataloging-in-Publication Data
Schlegel, John Henry.
American legal realism and empirical social science/
by John Henry Schlegel.
p. cm. (Studies in legal history) Includes
bibliographical references and index.
ISBN 0-8078-2179-9 (cloth: alk. paper)
1. Jurisprudence Research United States
History. 2. Jurisprudence United States
Methodology. 3. Law United States Methodology.
4. Social sciences Research United States
History. I. Title. II. Series.
KF380.S34 1995 349.73'01 dc20
[347.3001] 94-17950 CIP
99 98 97 96 95 5 4 3 2 1
Page v
FOR HENRY,
whose absence grows
more noticeable with time,
AND EMILY
Page vii
Contents
Preface
ix
Introduction: Whys and Wherefores
1
Prologue: As the Story Is Usually Told
15
CHAPTER 1
Legal Science, Social Science, and Professional Identity
23
CHAPTER 2
Empirical Legal Research at Yale: Charles E. Clark and William O. Douglas
81
CHAPTER 3
Empirical Legal Research at Yale: The Singular Case of Underhill Moore
115
CHAPTER 4
Empirical Legal Research at Johns Hopkins: Walter Wheeler Cook and His Friends
147
CHAPTER 5
Empirical Legal Research since World War II: The Reinvention of the Square Wheel
211
Afterword: On the History of Intellectuals, Including Lawyers
259
Biographical Appendix
263
Notes
271
Bibliography
377
Index
403

Page ix
Preface
WAY BACK WHEN I began this project, some year B.C. (before children), I explained to my then colleague L. Thorne McCarthy that I wished to write about the reception of the twentieth-century notion of science into law. I was startled when he quipped: "Schlegel, that's not history; that's futurology." Over time I have come to appreciate the truth of his statement. Similarly when beginning this book I conceived of it as part of an attempt to counter some mistaken notions about American Legal Realism first put forth by William Twining. Over time I have come to realize that, in a real sense, this book is nothing but an attempt to answer some of the questions that he posed when he asked:
Picture 2Picture 3
A thorough and informed post mortem, comparable to Currie's articles on the Columbia experiment, is still awaited. Among the points awaiting clarification are the following: how far can the espousal of "the scientific analogy" by Cook and Moore be treated as valid in the light of modern developments in the philosophy of science? Were Moore's methodological postulates sound? What were the differences in conception and method between the Johns Hopkins studies in judicial administration and other studies in the area, contemporaneous and subsequent? What are the grounds for maintaining that the Johns Hopkins studies were in some sense inferior? To what extent, if at all, can the "failure" of these studies, if they were a failure, be attributed to defective basic conceptions and faulty planning as opposed to poor execution and chance factors such as the economic situation and the personalities of the participants? Was the Johns Hopkins "failure'' relative not only to inflated expectations of a quick breakthrough but also to a more sober assessment of what might reasonably have been expected of a pioneering effort? All of these questions are to some extent matters of opinion: nevertheless, it would be instructive to set the detached appraisal of an informed expert armed with the wisdom of hindsight against the impressionistic and heated judgments of the Scientists' contemporaries.1
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