Postmodern Legal Movements

Front matter

Postmodern Legal Movements

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Contents

Acknowledgments ix Preface xi

Part One: Modern Jurisprudence, 1871—1980 1. Origins of Modern Jurisprudence 13 2. Modern Conceptual Jurisprudence 24 3. Modern Normative Jurisprudence 44

Part Two: Jurisprudential Movements of the 1980s 5. Law and Economics 83 6. Critical Legal Studies 106 7. Feminist Legal Theory 128 8. Law and Literature 149

Preface

The objective of this book is to present a general overview of the state of law and jurisprudence at twentieth century’s end. The idea for this book is based on Karl Llewellyn’s THE COMMON Law TRADITION (1960), and Grant Gilmore’s THE AGES OF AMERICAN LAW (1977). In these two books, Llewellyn and Gilmore set out to characterize the dominant styles of judicial decision making that have set the course of modern American jurisprudence since the early 1880s. Llewellyn called his effort the “periodization” of American law, while Gilmore called his the “Ages of American Law.” It is hardly necessary to say that these two legal scholars have provided extraordinary insights for understanding the nature of modern jurisprudential studies.

In the following chapters, I offer my modest effort to carry on this tradition in the intellectual history of American law by aiming my sights on the more recent movements and intellectual developments in jurisprudential thought. My study of postmodern legal movements begins with an examination of modern modes of traditional jurisprudential thinking in the United States that developed in this century; then it analyzes and describes five movements in legal thought active in the 1980s, and concludes with an examination of the emergence of postmodern jurisprudence at century’s end. My aim is to explore how the new forms of scholarly discourse at the end of this century have ruptured the modern “styles” of jurisprudence as described by Llewellyn and Gilmore, and how those discourses have themselves been reshaped by a new postmodern perspective. In so doing, I hope to offer some thoughts on the future of jurisprudence for the next century.

In order to make my task remotely feasible, I have tried to focus

Xi xii Preface on major themes and general theoretical developments in American jurisprudence, with primary emphasis placed on the development of the modern legal movements arising in the late 1970s and 1980s. My effort here is to try and capture the general jurisprudential climate by reviewing some of the “great” books and law review articles on jurisprudence and legal theory. I attempt to highlight the continuity as well as the disruption in American jurisprudential thought. I make no attempt to comprehensively cover all the significant jurisprudential writings or developments in the period considered, as such an undertaking would not be possible in the context of a single text such as this. The scholarly works I have selected are, I believe, highly relevant for evaluating the complex set of ideas and theories that have shaped the diverse contours of law and jurisprudence at century’s end. My hope is that this text will provide the interested reader with a useful interpretation as well as overview of modern and postmodern developments in American jurisprudence. Suffice it to say that this book aims at providing a general introduction to modern and postmodern legal movements and their significance to the contemporary study of jurisprudence.

Introduction

After several decades of interdisciplinary work in academic legal scholarship, it is impossible for one not to notice how obscure theories of economics, sociology, philosophy, anthropology, literary criticism, and other fields have infected recent academic writing and thinking about law and adjudication, or what is commonly understood as jurisprudence.’ Ever since the New Deal, legal studies have become more sophisticated and more eclectic.” This expanding eclecticism has brought about sharp debate in jurisprudence. Diversity and fragmentation of jurisprudence have been stimulated by a profession that has itself become splintered as a result of competition and rivalry between new jurisprudential movements, five of which are the subject of this book: law and economics, critical legal studies, feminist legal theory, law and literature, and critical race theory.

These movements are jurisprudential because each of them claims a membership of legal and nonlegal academics and practitioners who adhere to a particular understanding about modern law and adjudication. The five movements distinguish themselves by advocating different jurisprudential discourses, conceptions, and practices that challenge the way modern jurisprudential scholars have understood law and adjudication. They are the product of diverse intellectual tendencies, moods, and aesthetic styles, including late-nineteenth- and early-twentieth-century trends in legal theory. However, because the intellectual sources of these movements have involved overlapping intellectual moods or tendencies, the five movements appear at times to share common characteristics. Finally, each movement introduces a new form of jurisprudence that departs from the perspectives and methods of “mainstream” or modern scholarship in the field. One of the more interesting developments in recent American legal thought has been the almost simultaneous emergence and maturation of these five jurisprudential movements during the decade of the 1980s.

More recently, a shift in theoretical perspective came about as contemporary legal scholars associated with these movements turned from interdisciplinary methodologies to more robust and less determinant modes of interpretation. This “interpretive turn” in jurisprudence coincided with a new interest in the possibility of replacing foundational truths, transcendental values, and neutral conceptions of law with a more pluralistic, contextual, and nonessential explanation of law and legal decisionmaking developed for a multicultural society. My central thesis is that the five jurisprudential movements of the 1980s have consequently come to reflect the emergence of a new skeptical aesthetic, mood, or intellectual condition in American jurisprudential studies, which many have identified as postmodern. Hence, I shall refer to the five movements as postmodern legal movements.

Postmodernism is an elusive term not easily defined or captured by standard dictionaries or interpretive strategies.’ Postmodernism thus poses an intellectual dilemma for contemporary writers and thinkers. How do we get at the meaning of postmodernism if postmodernism does not allow us to use foundational concepts or a metanarrative to fix its meaning? The predicament of postmodernism is that postmodernism is a condition, an aesthetic, an intellectual style that recognizes and embraces the contradictions and paradoxes it discovers in traditional conditions, aesthetics, and intellectual styles. Postmodernism announces something that resists a stabilized identity; it problematizes the very form, the very discourse used to announce its existence without attempting to offer an alternative theory or discourse. One does not get a better sense of postmodernism by excising this critical reflexivity (and its attendant difficulties). On the contrary, one loses what one was trying to understand (i.e., postmodernism) by any attempt to either cabin postmodernism within the modernist’s conceptual framework of understanding or, paradoxically, to insist that the postmodernist present the “postmodern” account or history of American jurisprudential thought.

At one time, the term “postmodernism” was used to refer to the rejection of modernist aesthetics in the fields of architecture and art.

Today, the term is used by a variety of contemporary academics to signify a new mood or aesthetic in intellectual thought. In law, postmodernism signals the movement away from interpretation premised upon the belief in universal truths, core essences, or foundational theories. In jurisprudence, postmodernism signals the movement away from “Rule of Law” thinking based on the belief in one true “Rule of Law,” one fixed “pattern,” set of “patterns,” or generalized theory of jurisprudence. Postmodernism is an aesthetic practice and condition that is opposed to “Grand Theory,” structural patterns, or foundational knowledges. Postmodern legal critics employ local, small-scale problemsolving strategies to raise new questions about the relation of law, politics and culture. They offer a new interpretive aesthetic for reconceptualizing the practice of legal interpretation. However, because postmodernism is an unstable category (and because the condition it announces is unstable), it ends up meaning many things to many people. Postmoderns would in fact resist the effort to reduce the meaning of postmodernism to statements made by a single author or text.

Perhaps the best that can be done is to try and describe very loosely what postmodernists tend to believe and what they do in their intellectual practices. They seem to be united in their resistance to the sort of conceptual theorization and system building routinely practiced by legal academics and analytical philosophers. The postmodern writer is in the position of a philosopher. working without theory and rules to investigate how the production of intellectual work serves to establish a certain normative form or “lifeworld.” Some postmodernists claim that the intellectual projects of modern legal scholars have unduly emphasized abstract theory at the expense of “open-minded” pragmatic and “no-nonsense” skeptical forms of reason. Other postmodernists claim that the production of intellectual work, in theory and practice, has been concerned more with the perfection of a particular form (pragmatic or theoretical) than with the accomplishment of some social objective.

Some postmodernists tend to believe that modern theory has come to reflect the self-identity of the professional academic who has become obsessed with the ideal of realizing self-perfection, freedom, autonomy, and professional status. These postmodernists claim that the identity of this professional academic is a social, cultural, historical, and linguistic creation of a normative vision of a particular individual subject. They explore the various ways in which the legal and social identity of this subject has influenced the construction of texts, discourses, and institutions. Postmodernists claim that modern jurisprudence has indulged in the dubious fiction that a lone author is in control of the text, that law is a creation of a rational author, and that this author is capable of standing outside the system and is thus capable of objectively evaluating its functions.

Postmodernists do not claim that they can successfully avoid the predicaments and paradoxes they have found in the modernist’s conceptual narratives. Indeed, postmodernists recognize and embrace these predicaments and paradoxes in their own narratives. They do this because they believe that texts, discourses, vocabulary, and grammar of the professional field cannot “intentionally” be overcome or avoided by a lone author. Moreover, the existence of predicament and paradox in the texts of postmodernists, as well as those in the texts and discourse of everyone else, are seen by postmodernists as part of the “situation” they call the postmodern condition. In other words, postmodernists do not claim that they stand outside of the system they criticize.

It is important to note, however, that there is probably no one who believes in all of these propositions. Indeed, postmodernists would reject the effort to identify a postmodernist with a series of propositions. To identify postmodernism with a set of propositions, beliefs, or “postmodern narrative” would be too essentialist, too modernist, to be postmodern. Such an effort would too closely resemble the type of academic work now practiced by modern legal academics and analytical philosophers. Postmodernists claim that everyone is influenced and shaped by the rational aesthetic of modernism; the difference between various writers and thinkers is said to be in the extent to which they take critical cognizance of the predicaments and paradoxes of their current intellectual situation. What distinguishes postmodernists from all other legal critics is that they warmly embrace these predicaments and paradoxes.

Postmodernism exhibits different critical manifestations. Some postmodernists have adopted a neopragmatic outlook as an antidote to the postmodern condition. These postmodern critics are skeptical of the truth claims of modern theory, but they have not given up on theory. On the contrary, they believe that theory can have utility when used as a tool for the empirical investigation of problems. They understand truth as merely the belief structures of a particular professional community or social milieu. They emphasize the importance of “common-sense” experimentation and instrumental approaches in their work. Other postmodernists are more critical of appeals to “reason,” even prygmatic ones that emphasize the virtues of common sense. They embrace the predicaments and paradoxes of the current intellectual condition in order to better understand the world of legal, social, and philosophical thought, and they attempt to bring out the irony of the experience of living in a postmodern world. I will refer to these postmodernists as ironists.

Before confronting postmodern forms of jurisprudence, we must first explore what came before postmodernism, that is, modernism. Part One will, therefore, begin this study with an examination of the dominant themes of modern American jurisprudence in this century. These themes reflect the intellectual background of twentieth-century legal modernism. Legal modernism, as distinguished from artistic modernism,’ is a term | use in this book to describe the intellectual position of jurisprudential writers who believed a lone author could discover “right answers” for even the most difficult and controversial problems in the law. Modern legal theorists believe that they can discover the “right answers” or “correct interpretation” by applying a distinctive legal method based on deduction, analogy, precedent, interpretation, social policy, institutional analysis, history, sociology, economics, and scientific method. Legal modernism symbolizes the progressive union of scientific objectivity and instrumental rationality in pursuit of the intellectual project of twentteth-century Enlightenment—the century-old quest for universal truth based on faith in the “omnipotence and liberating potential of reason and science . . . to penetrate to the essential truth of physical and social conditions, thus making them amenable to rational control.”° Legal moderns, influenced by the modernist’s tendency to create “movements,” express the intellectual and artistic quest for perfection through the process of uncovering and unmasking the secrets of the world 2 transcending contexts that limit human understanding.

Much of modern jurisprudential discussion has thus accepted the possibility of developing conceptual and normative arguments to explain how subjective preferences in legal decisions might either be restrained or justified. Conceptual jurisprudence attempts to confine itself to the operational study of legal concepts and reasoning. Normative jurisprudence emphasizes the importance of considering the moral and ethical dimension of law. For many legal thinkers, normative legal thought is believed to be pitted against the technical doctrinalism of conceptualist legal thought. But it turns out that the tension between normative and conceptual legal thought is overstated. While the opposition is real, the two modes of legal thought must be understood as different sides of the same whole. This is because these two forms of modern jurisprudence share a common orientation: both express faith in the Enlightenment search for a universal method to resolve law’s many problems. As former solicitor general of the United States and Harvard University law professor Charles Fried expressed the idea, “[T]here is a distinct method which is the legal method . . . that it can be deployed more or less well . . . that it yields a distinct set of answers more or less out of itself.” é

Legal modernism also characterizes the interpretive practice of modern liberal legal scholars.’ This practice is based on an understanding of language that assumes that words and conceptual ideas are capable of objectively capturing the meaning of events the law seeks to describe and control. The professional language of law uses abstract categories such as object/subject, law/society, substance/process, core/penumbra, etc., to construct Rules of Law that satisfy jurisprudential requisites of generality and objectivity. Modern liberal scholars assume that these representational dichotomies permit the legal system to produce neutral decisions by constraining the power of judicial interpretation.

New developments in legal theory, however, have brought about a breakdown and fragmentation of this representational practice. A “crisis of representation” occurred as the traditional canons of interpretation in theory and language of modern jurisprudence no longer seemed capable of constraining the power of judicial interpretation. The current mood of jurisprudential studies in the academy suffers under conditions of anxiety created by a loss of confidence in the “Rule of Law” ideal of modern liberal legal thought.

Chapters 1 through 4 examine the key features of mainstream or modern jurisprudence prevailing in the legal academy between 1871 and 1980. Chapter 1 locates the early origins of legal modernism in the jurisprudence of two highly influential nineteenth-century American lawyers and scholars, Christopher Columbus Langdell and Oliver Wendell Holmes. Chapter 2 traces the development of modern jurisprudence from the American legal realist movement to the 1950s theory of adjudication known as neutral principles. Chapter 3 examines the modern jurisprudential theories of the 1960s, which established the basic argumentative styles of modern normative jurisprudence. Chapter 4 then examines how the faith in modern jurisprudence was questioned throughout the 1960s, 1970s, and 1980s. The social and cultural changes unfolding during the 1960s provide some clue for understanding why there was a loss of faith in legal modernism. Also of significance was the publication of Charles Reich’s THE NEw Property and Ronald Coase’s THE PROBLEM OF SOCIAL Cost, both published in the early 1960s.

Part Two surveys the five jurisprudential movements that influenced and transformed modern jurisprudence during the late 1970s and 1980s. Chapters 5 through 9 describe and analyze Law and Economics, Critical Legal Studies, Feminist Legal Theory, Law and Literature, and Critical Race Theory, respectively. These new movements in American jurisprudence brought to the legal academy a new feeling of excitement as well as unease. As a result of these movements, people debated and argued about basic concepts in jurisprudence and law, and there has been much disagreement and academic dissent over the continuing validity of traditional notions surrounding law and adjudication. What seemed secure in the 1960s and much of the 1970s became hotly contested in the 1980s. New players in the legal academy advanced new ideas about the nature of law and adjudication. For some, modern-day jurisprudence had become like “a stew that is being constantly fed with spices and flavorings and endlessly stirred.” $

By the end of the 1980s, the jurisprudential “stew” had simmered to a boiling point. The legal academy was embroiled in fundamentally different discourses and perspectives on law and adjudication. Devotees of the law and economics movement argued that law and adjudication would be best understood as a discourse about economics. Critical legal studies devotees claimed that law and adjudication were best understood as an ideological discourse shaped by power relations. Feminist legal theorists believed that law should be analyzed as gender discourse. Meanwhile, critical race theorists advanced a discourse of race to challenge the “race-neutral” stance of mainstream legal discourse. Those in the law and literature movement argued that law and adjudication would be more fruitfully approached from a literary perspective. Jurisprudential discourse mushroomed into a number of different professional discourses that advanced different normative and theoretical methodologies for understanding the nature of law and adjudication.

What has not been fully recognized is that the jurisprudential movements of the 1980s set the stage for a new form of legal criticism, which precipitated a much broader debate about the validity of traditional canons for interpreting legal texts, new definitions of law, and different linguistic and cultural practices. This “canon debate,” as it is known in the general university,” questions the possibility of disinterested scholarship, objective knowledge, and shared intellectual traditions for discovering ultimate truths about American jurisprudence. At stake is the belief that law rests on solid ethical and epistemological foundations. The canon debate revealed that there is no longer a consensus on the possibility of a comprehensive theory for explaining the nature of law. Multiculturalism in legal studies has shaken the once dominant hold of large-scale, homogenizing explanations of law and culture. A new generation of skeptical legal academics has consequently rejected the divine project of developing foundational arguments or “canons” of construction for discovering the ultimate “truths” about law and social phenomena.

Part Three explores the meaning of the canon debate for the future of jurisprudential studies. Chapter 10 explores how the jurisprudential movements of the 1980s set jurisprudence on a transformative course leading unwittingly and unconsciously to a new postmodern form of jurisprudence. Chapter 11 examines the reactions of jurisprudential scholars to postmodern forms of jurisprudence, and speculates on how these reactions are characteristic of a major paradigm shift in academic practice. Chapter 12 explores the nature of this new postmodern jurisprudence by examining how it has come to be reflected in the work of two prolific contemporary postmodern writers and scholars, Richard A. Posner and Pierre Schlag.!° Posner and Schlag represent two sides of postmodern jurisprudence, just as Langdell and Holmes represented two sides of legal modernism. The Conclusion speculates on the significance of postmodern jurisprudence for the future of law and jurisprudential studies.

My thesis is that the breakdown of comprehensive forms of jurisprudence and the proliferation of multicultural jurisprudential discourses is characteristic of the postmodern aesthetic or temperament in intellectual thought. Postmodernism emerges from the view that the search for new legal theories and metanarratives to solve law’s problems has been exhausted.!! It “announces or implies that a rupture has occurred, an irreparable break with the past, and that nothing can ever be the same again.” 1? Some claim this has happened in jurisprudential studies. There has been a loss of faith in a secular and autonomous jurisprudence as the Rule of Law for all rules. My purpose in subsequent chapters will be to explore how the modern legal movements of the 1980s have themselves fostered the emergence of this new postmodern jurisprudential perspective.

Part One Modern Jurisprudence, 1871—1980

I1. Origins of Modern Jurisprudence

Modern American jurisprudential studies began when the dean of Harvard University Law School, Christopher Columbus Langdell, published the first modern law school casebook, SELECTION OF CASES ON THE LAW OF CONTRACTS, in 1871. Langdell’s casebook ushered in the modern era because it offered a new methodology and pedagogy for law study that was nothing more than an expression of faith in the scientific method. He declared in the preface to his Contracts casebook: “It is indispensable to establish at least two things, first that law is a science; secondly that all the available materials of that science are contained in the printed books.” ! In keeping with the spirit of Enlightenment, Langdell had faith in the powers of science and reason to uncover universal truths.” The late Grant Gilmore,’ a distinguished twentieth-century contracts and commercial scholar, called Langdell a “symbol” of “the Age of Faith.” 4 Another way to describe this is to see Langdell as an architect of what Thomas Grey called the “classical orthodox system” of American legal thought.”

The refinement of Langdell’s classical orthodox system was premised on the view that law is a complete, formal, and conceptually ordered system that satisfies the legal norms of objectivity and consistency. Completeness meant that this system was capable of providing uniquely correct solutions or “right answers” for every case brought for adjudication. Formality meant that the system was capable of dictating logically correct answers through the application of abstract principles derived from cases.’ The system was conceptually ordered to the extent that its substantive bottom-level rules were coherently derived from a small

I3 number of relatively abstract principles and concepts, creating a holistic system. While it is generally thought that Langdell’s classical orthodox system was the antithesis of modern legal thought, in actuality it helped establish the argumentative logic of a form of legal modernism known as conceptualism.

Conceptualism (“law as logic”) is what Karl Llewellyn called the “Grand Style” in American legal thought—a form of logic that classifies legal phenomena on the basis of a few fundamental abstract principles and concepts developed from the distinct methods of legal reasoning.’ Legal conceptualists like Langdell used logic to go from legal premises to legal conclusion: basic legal concepts and definitions (premises) were assumed to be self-evident such that a logical correct choice of premises was thought possible. Logic was used to go from the premises to the legal conclusion.!° Conceptualism was “the project of structuring law into a system of classification made up of relatively abstract principles and categories.” !! Modern conceptual jurisprudence harkens back to the Langdellian idea that law is a value-free science. Conceptual legal thought includes logical positivism, technical doctrinalism, and courtcentered theories of adjudication such as legal process theory and neutral principles of adjudication.

Langdellian conceptualism can be discovered in the way Langdell wrote about law. In his writing, the law is a transcendental object or transcendental subject unaffected by social and economic context. When Langdell wrote of law, he wrote like a precocious antihumanist. He wrote in the third person a lot. For example, “A debtor becomes personally bound to his creditor for the payment of debt.” !° The debtor and the creditor are unnamed individuals who are the legal abstractions of Langdell’s analysis of commercial law. Langdell, the propounder of the law, never let the reader know that it was he, rather than the “law,” who created the discourse and conducted the analysis.!* Langdell’s analysis of the debtor’s liability was conceptual because it represented law as an “intrinsic, essential object” independent of context. In contemporary jurisprudence, this way of talking and thinking about law is known as the “formal style” of conceptual legal thought. Conceptualists who are formalists believe that law should be justified on the basis of uncontroversial rules and self-evident doctrinal premises insulated from external moral and ethical concerns.'°

Legal conceptualists who followed Langdell’s orthodoxy assumed either that law was a transcendental object possessing universal properties unaffected by analyzing subjects, or that law was itself a transcendental subject capable of rendering authoritative pronouncements.!¢ Conceptualists thus projected a particular interpretive stance developed for a highly abstract and fictitious mode of analysis. The law of contracts, for example, has been treated as a body of fixed objects, of rules, principles, or policies that could be discovered by someone; or, contract law itself has been assumed capable of rendering its own pronouncements without the assistance of any legal actor. A contract for the sale of groceries was like all other contracts, because all contracts worthy of legal enforcement were required to satisfy certain universal rules established by an objective theory of contract law.!” The law could declare that “A contracts with B” because the universal pronouncements of contract law defined the rules governing the sale of groceries as well as contracts for employment. In this way, Langdellian rhetoric portrayed law as either a transcendental object or transcendental subject, but in either case the role of the analyzing subject was eclipsed.'®

Modern legal scholars, judges, and lawyers continue to exclude themselves from the process of interpretation in order to preserve their belief in the autonomous object/subject—the Law. Today, modern legal conceptualists believe that law is an “imminently intelligible enterprise” which “elaborates itself from within.” 1? Judges who make decisions and attempt to understand the system are assumed to be only relatively autonomous in the sense that they control their own thoughts and actions, but their freedom to act is thought to be limited by the legal texts they interpret, and by the reasoning process they apply in the process of interpretation and decision making. The texts and reasoning of the law define the identity of the modern legal thinker as a relatively autonomous self.?° Legal subjects continue to believe, as Langdell did, that they are capable of bringing order and reason to the objective world of law.?!

The supposed objectivity of law is today justified by boundary definitions that distinguish the rational process of the law from the domains of politics and popular culture of interpreting subjects. The boundary between law and society has become a familiar way for lawyers to maintain their belief that law can be discovered conceptually in the object-forms of rules, principles, and doctrines. Langdellians believed that the object-forms of the law were immune from the ever-changing nature of society. Society might change, but they thought that the universal principles of law would endure forever. Modern-day legal conceptualists reject the idea of an artificially fixed line between law and society, but continue to believe that law and its methods can be objectively administered by disciplinary rules of the legal community.”” Conceptual jurisprudence thus describes a whole series of jurisprudential theories devised by legal scholars to develop a less political and more objective understanding of law and culture.

If law could be like a science, then legal studies could aspire to be a serious discipline in the university. The reduction of law to concepts systematized by Langdell’s case method of instruction rendered legal apprenticeship obsolete as a means for professional law training, since it was no longer necessary to study law as a practice; all that one needed to learn the law was a classroom, casebooks, and a teacher trained in the Socratic method of instruction.” The modern American law school, modeled after Langdell’s Harvard Law School, could subsequently claim membership in the university community, with equal, if not greater stature and status.** Law professors could aspire to join university professors in the common quest for the discovery of truth. These developments permitted law to be studied as a “normal science.”

Langdell gave American legal studies a new faith in the powers of law to dispel the darkness of the ancient common law, with its confusing and incoherent terminology and theories. Gilmore said that “if Langdell had not existed, we would have had to invent him.” > Indeed, modern legal thought would not have been possible without Langdell, or someone like him. Langdell’s great idea that “law is a science” was consistent with the modernists’ belief that reason and science could and should rationalize and control the dark mysteries of the ancient law. For American lawyers at the dawn of the twentieth century, the spirit of Enlightenment could be found in the Langdellian faith in the omnipotence and liberating potential of reason and science to penetrate the essential truths of legal relations.*°

The course of modern American jurisprudence was influenced by another great legal modernist, Oliver Wendell Holmes.”’ As Grant Gilmore put it: “If Langdell gave the new jurisprudence its methodology, Holmes, more than anyone else, gave it its content.” ?8 Indeed, the modern era in jurisprudence did not bloom full-flower until Holmes gave a series of lectures at the Lowell Institute in Boston in November and December of 1880. These lectures were the basis for Holmes’s great book, THE COMMON Law, published in 1881,2? and marked the beginning of the modern era in jurisprudential studies: they set the basic themes of American law in a distinctively pragmatic direction.