Skip to main content Accessibility help
Hostname: page-component-78bd46657c-9jmqz Total loading time: 0.265 Render date: 2021-05-07T16:53:52.649Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "metricsAbstractViews": false, "figures": false, "newCiteModal": false, "newCitedByModal": true }

Progress Is Our Only Product: Legal Reform and the Codification of Evidence

Published online by Cambridge University Press:  27 December 2018


Twentieth-century reform of the American law of evidence was initially premised on the ideals of legal progressivism, ideals splintered by American legal realism. In preparing the American Law Institute's Model Code of Evidence from 1939 to 1942, Harvard Law School professor Edmund M. Morgan attempted to reconstitute the framework of reform in light of the challenge of legal realism. The Model Code was based on granting greater discretion to the trial judge and changing the goals of the trial from a search for truth to a “rational” resolution of disputes. In large part due to these apparently radical and “corrosive” changes, the Model Code failed to win professional support and was not adopted by any state. The structure of the Model Code was used for the two subsequent evidence codification efforts, the Uniform Rules of Evidence and the Federal Rules of Evidence. These codification efforts found greater academic favor in part because they fit within the post-World War II jurisprudence of reasoned elaboration. The Federal Rules also enjoyed extraordinary professional favor because the drafters explicitly affirmed truth as the goal of the rules. The irony is that the framework of the Federal Rules, since they are based on the Model Code, contradicts this message.

Copyright © American Bar Foundation, 1992 

Access options

Get access to the full version of this content by using one of the access options below.


1 Compare Robert S. Summers, Von L. Fuller (Stanford, Cal.: Stanford University Press, 1984), With Peter Read Teachout, “The Soul of the Fugue: An Essay on Reading Fuller,” 70 Minn. L Rev. 1073 (1986). But see John Henry Schlegel, “The Ten Thousand Dollar Question,” 41 Stan. L Rev 435 (1989), Reviewing Laura Kalman, Legal Realism at Yale, 1927–60 (Chapel Hill: University of North Carolina Press, 1986) (“Kalman, Legal Realism”) (suggesting the necessity of individualized portraits to understand American legal realism).Google Scholar

2 Morgan received bachelor's, master's, and law degrees from Harvard University, the last coming on 1905. He practiced law in Duluth, Minn., for seven years before he joined the faculty at the University of Minnesota School of Law, In 1917 Morgan joined the Yale Law School faculty, where he remained until 1925, when he returned to his aha mater. Morgan retired from Harvard in 1950. He then began teaching at Vanderbilt Law School, where he taught until 1963. He died in 1966. See Ladd, Mason, “Edmund M. Morgan—In Memoriam,” 79 Harv. L Rev 1546 (1966).Google Scholar

3 There was a brief mention of the Model Code of Evidence. “The Committee acknowledges its indebtedness to its predecessors in the field of drafting rules of evidence. The American Law Institute Model Code of Evidence, Uniform Rules of Evidence, New Jersey Rules of Evidence, and California Evidence Code, with their supporting studies and commentaries, were invaluable in suggesting general approaches and organization as well as particular solutions.” Letter of Submission to Standing Committee on Rules of Practice and Procedure, 46 F.R.D. 173, 180 (1969) (written by Albert E. Jenner Jr., Chairman of the Advisory Committee on Rules of Evidence).Google Scholar

4 The exception, in my view, is Kenneth Graham. See 21–25 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure (St. Paul, Minn.: West, 1977–89) (“Wright & Graham, Federal Practice”); Kenneth W. Graham, Jr., “‘Therell Always Be an England’: The Instrumental Ideology of Evidence,” 85 Mich L Rev 1204 (1987), reviewing William Twining, Theories of Evidence: Bentham and Wigmore (London: Weidenfeld & Nicolson, 1985) (“Twining, Theories of Evidence”); id.; “The Persistence of Progressive Procedural-ism,” 61 Tex. L. Rev. 929 (1983), reviewing Julius Byron Levine, Discovery: A Comparison between English and American Civil Discovery Law with Reform Proposals (1982).Google Scholar

5 In the Rules Enabling Act of 1934 Congress authorized the Supreme Court to prescribe general rules of practice and procedure, which were to become effective if Congress took no action during a regular congressional session to nullify them after being reported to Congress. 28 U.S.C. 2072 (1934). By order dated 20 Dec. 1937, the Supreme Court adopted the Federal Rules of Civil Procedure, which were then transmitted to Congress by the Attorney General in Jan. 1938. Congress took no action during that congressional session to nullify the new Federal Rules of Civil Procedure. On 16 Sept. 1938, the Rules became effective. See text accompanying notes 71–77.Google Scholar

6 Rules of Evidence, Pub. L. 93–595, 88 Stat. 1926 (1974).Google Scholar

7 Fed. R. Civ. P. 1.Google Scholar

8 Fed. R. Evid. 2.Google Scholar

9 See text accompanying notes 130–39, discussing the change from perceiving the rules of evidence as a way to ascertain the truth to a perception of the rules as part of the process of creating a politically convenient way to settle disputes.Google Scholar

10 Twining, Theories of Evidence vii; see also Lawrence M. Friedman, A History of American Law 663–64 (2d ed. New York: Simon & Schuster, Touchstone, 1985) (“Friedman, History of American Law”) (“This state of mind is part of the general debris of a world-wide movement of recent centuries that can be called, for want of a better name, rationalism”); Calvin Woodard, “The Limits of Legal Realism: An Historical Perspective,” 54 Va. L. Rev. 689, 691–94 (1968) (noting that the process of secularization of society is based on the growth of rationalism, the development of science, and the invention of new technology); John Merryman, The Civil Law Tradition 28–29 (2d ed. Stanford, Cal.: Stanford University Press, 1985) (discussing the influence of the spirit of “optimistic rationalism” on the codification of French private law in the Code Civil of 1804).Google Scholar

11 Twining, Theories of Evidence 1–18. See also William Twining, “Evidence and Legal Theory,” 47 Mod. L Rev. 261, 272 (1984); id, “The Rationalist Tradition in Evidence Scholarship,” in Enid Campbell & Louis Waller, eds, Well and Truly Tried 211, 242–49 (1982) (“Twining, ‘Rationalist Tradition’”). In “Evidence and Legal Theory,” Twining notes that this pervasive optimistic rationalism has been challenged in the history of ideas by the thought of “Croce, Collingwood, Freud, Mannheim, Marx and Weber,”id. at 274, and in legal thought by “contemporary writing on judicial processes.”Id. 1 believe that the “oppositional” thought of Freud, Marx, and Weber remains largely that, and “most” legal and intellectual thought is pervaded by Enlightenment thought. Cf. Alasdair MacIntyre, After Virtue (2d ed. Notre Dame, Ind.: University of Notre Dame Press, 1984). Additionally, Twining cites no writers discussing the judicial process. A recent compilation of divergent thought concerning the judicial process is Stephan Landsman, American Bar Association Section of Litigation Readings on Adversarial Justice: The American Approach to Adjudication (St. Paul, Minn.: West, 1988).Google Scholar

12 See generally White, G. Edward, “From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth-Century America,” 58 Va. L. Rev 999 (1972).CrossRefGoogle Scholar

13 On William Draper Lewis, former dean of the University of Pennsylvania School of Law and founder and executive director of the American Law Institute, see N. E. H. Hull, “Restatements and Reform: A New Perspective on the Origins of the American Law Institute,” 8 Law & Hist. Rev. 55, 81–86 (1990). See also 21 Wright & Graham, Federal Practice at § 5005 (“There can be little doubt of the ties between the A.L.I. and legal scholars of Progressive political leanings, for the Institute was led for many years by William Draper Lewis, former Dean of the University of Pennsylvania Law School and an active Progressive”). On Charles E. Clark, dean of the Yale Law School and Reporter for the Advisory Committee drafting the Federal Rules of Civil Procedure, see 4 Charles Alan Wright & Arthur Miller, Federal Practice and Procedure§ 1004 (St. Paul, Minn.: West, 1987) (“Wright & Miller, Federal Practice”). Clark was dean of Yale Law School from 1929 until 1939, when he was appointed to the U.S. Court of Appeals for the Second Circuit. See Eugene V. Rostow, Judge Charles E. Clark, 73 Yale L.J. 1 (1963); see generally Kalman, Legal Realism 115–40 (cited in note 1). John Henry Wigmore was author of the definitive treatise of the law of evidence, A Treatise on the Anglo-American System of Evidence in Trials at Common Law (1st ed. 1904–5; 2d ed. 1923; 3d ed. Boston: Little, Brown & Co., 1940) (“Wigmore, Treatise”). See Edmund M. Morgan, Book Review, 20 B.U.L Rev. 776, 793 (1940) (“Not only is this the best, by far the best, treatise on the Law of Evidence…”). In Theories of Evidence 172, Professor Twining cites approvingly a description of Wigmore as “the last Mid-Victorian.” I agree with this assessment, but Wigmore was a legal progressive, as distinct from a legal formalist. It is true, however, that his political conservatism led him to urge the ABA to join the fight against Communism during the first Red Scare of 1919–21 and caused him to rail against those legal academics who supported Sacco and Vanzetti in the mid- to late 1920s. An interest in legal reform does not and did not require a political liberalism or progressivism. See, e.g., Friedman, History of American Law, 674 (“‘Law reform,’ in the sense the organized bar uses this term, is really a measure for professional defense.”). On Wigmore, see William R. Roalfe, John Henry Wigmore: Scholar and Reformer (Evanston, Ill.: Northwestern University Press, 1977) (“Roalfe, Wigmore”). The most important legal progressive was Roscoe Pound, whose 1906 speech to the American Bar Association, later published under the title “The Causes of Popular Dissatisfaction in the Administration of Justice,” 29 A.B.A. Rep. 395 (1906) (‘Pound, ‘Popular Dissatisfaction’”), was the catalyst for legal progressivism.Google Scholar

14 See G. Edward White, “The Evolution of Reasoned Elaboration: Jurisprudential Criticism and Social Change,” 59 Va. L. Rev 279 (1973): Edward A. Purcell, Jr., The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value 159–78 (Lexington: University Press of Kentucky, 1973) (“Purcell, Crisis of Democratic Theory”) (showing the early reaction against realism); Akhil Amar,“Law Story,” 102 Harv. L. Rev. 688 (1989) (review essay of the third edition of Hart & Wechsler's The Federal Courts and the Federal System).Google Scholar

15 Twining, Theories of Evidence viii (cited in note 4).Google Scholar

16 Id. at 13.Google Scholar

17 Id. at 14.Google Scholar

18 Twining uses the phrase “rectitude of decision.”Id.Google Scholar

20 See 5 Wigmore, Treatise§ 1367 (3d ed. 1940) (cross-examination “is beyond any doubt the greatest single engine ever invented for the discovery of truth”). See also Twining, Theories of Evidence 161 (cited in note 4) (“Wigmore placed far more emphasis on the role of the law of evidence as a means for promoting the search for truth than on its role in constraining that search in the interest of other values and policies”). See text accompanying notes 130–39.Google Scholar

21 cf. Pound, “Popular Dissatisfaction” at 404–5 (disparaging the ideal that a trial was a sporting contest and pleading for a procedure allowing a judge to independently search for truth and justice).Google Scholar

22 Wigmore, Treatise. The first important treatise on the law of evidence in America was written by Harvard Law School Professor Simon Greenleaf and first published in 1842. The title of Greenleaf's book was A Treatise on the Law of Evidence. Greenleaf's treatise was preceded in America only by Swift, Digest of the Law of Evidence, which apparently had little impact. See 21 Wright & Graham, Federal Practice at § 5001. See also Twining, “Rationalist Tradition” at 231 (cited in note 11). Initially, Greenleaf's treatise was written for his students but became the authoritative source of the American law of evidence for the rest of the 19th century. See Twining, Theories of Evidence 5. The 16th, and final, edition of Greenleaf on Evidence was edited by Wigmore, then a professor at Northwestern University Law School, in 1899. Little, Brown & Company, the publishers of Greenleaf on Evidence, were impressed with Wigmore's efforts to the extent that they asked him to author a treatise on the law of evidence, which resulted in Wigmore's monumental Treatise. 21 Wright & Graham, Federal Practice at § 5001.Google Scholar

23 Wigmore was named dean at Northwestern University Law School in 1901, a position he held until 1929. After military service in Washington, D.C., during World War I, Wigmore preferred the appellation “Colonel”.Google Scholar

24 The death in 1902 of Wigmore's evidence teacher at Harvard Law School, James Bradley Thayer, and the publication of Wigmore's Treatise to replace Greenleaf left Wigmore as the dominant evidence scholar within both legal academia and the legal profession.Google Scholar

25 21 Wright, & Graham, , Federal Practice at § 5001. The following paragraph draws heavily on that work.Google Scholar

26 See generally White, 58 Va. L Rev. (cited in note 12); See also Roscoe Pound, “Mechanical Jurisprudence,” 8 Colum L Rev. 605, 608–9 (1908) (contrasting a mechanical jurisprudence with a “sociological movement in jurisprudence”).Google Scholar

27 Pound, “Popular Dissatisfaction” at 403 (cited in note 13).Google Scholar

(1) The individualist spirit of our common law, which agrees ill with a collectivist age;.Google Scholar

(2) The common Law doctrine of contentious procedure, which turns litigation into a game; (3) political jealousy, due to the strain put upon our legal system by the doctrine of supremacy of law; (4) the lack of general ideas or legal philosophy, so characteristic of Anglo-American law, which gives us petty tinkering where comprehensive reform is needed, and (5) defects of form due to the circumstance that the bulk of our legal system is still case law.Google Scholar

29 Id. at 405.Google Scholar

32 Id.“The inquiry is not, What do substantive law and justice require? Instead, the inquiry is, Have the rules of the game been carried out strictly!”Id. at 406. A related problem was the “injustice of deciding cases upon points of practice, which are the mere etiquette of justice.”Id at 408.Google Scholar

33 Id. at 406.Google Scholar

34 See 21 Wright & Graham, Federal Practice at § 5001.Google Scholar

35 Pound, 8 Colum L Rev. at 605.CrossRefGoogle Scholar

37 Id. at 609.Google Scholar

38 Id. at 609–10.Google Scholar

39 Id. at 617.Google Scholar

40 Id. at 620.Google Scholar

41 Roscoe Pound, “Liberty of Contract,” 18 Yale L.J. 454, 464 (1909).Google Scholar

42 See 21 Wright & Graham, Federal Practice at § 5005.Google Scholar

43 Hull, , 8 Law & Hist. Rev. at 85 (cited in note 13).Google Scholar

44 On progressivism generally, see Robert H. Wiebe, The Search for Order, 1877–1920 (New York: Hill & Wang, 1967), and Richard Hofstadter, The Age of Reform: From Bryan to F.D.R. (New York: Vintage Books, 1955). On general intellectual thought in the late 19th and early 20th centuries, see Henry Steele Commager, The American Mind: An Interpretation of American Thought and Character since the 1880′s (New Haven, Conn.: Yale University Press, 1950), and on developments leading up to progressivism, see Morton Keller, Affairs of State: Public Life in Late Nineteenth Century America (Cambridge, Mass.: Harvard University Press, Belknap Press, 1977).Google Scholar

45 See Morton White, Social Thought in America: The Revolt against Formalism (New York: Viking Press, 1949). An excellent and empathetic exploration of legal formalism is Thomas Grey, “Langdell's Orthodoxy,” 45 U. Pitt. L Rev. 1 (1983). Grey suggests that “the heart of classical theory was its aspiration that the legal system be made complete through universal formality, and universally formal through conceptual order.”Id. at 11.Google Scholar

46 See 21 Wright, & Graham, , Federal Practice at § 5001. The ideology of bureaucracy was one tenet held in common by both legal progressives and realists. See Kalman, Legal Realism 31 (cited in note 1) (discussing Clark and Arnold). On Thurman Arnold's views, see Ayer, Douglas, “In Quest of Efficiency: The Ideological Journey of Thurman Arnold in the Interwar Period,” 23 Stan. L Rev. 1049, 1085 (1971) (“The isolation of efficiency from other values led to an insistence on government by experts”); cf. Neil Duxbury, “Some Radicalism about Realism? Thurman Arnold and the Politics of Modern Jurisprudence,” 10 Oxford J. Legal Stud 11, 21 (1990) (“Arnold, however, was no potential reformer”).Google Scholar

47 White, , 58 Va. L Rev. at 1003 (cited in note 12). In efforts to reform the law of evidence, however, legal progressives like Edmund Morgan used the specter of administrative tribunals replacing trial courts to persuade the legal profession to support evidentiary reform. See Morgan, Edmund M., “The Future of the Law of Evidence,” 29 Tex. L. Rev. 587, 607–9 (1951).Google Scholar

48 Pound, 8 Colum. L Rev. 605 (cited in note 26). See Edmund M. Morgan et al., The Law of Evidence: Some Proposals for Its Reform xiv (New Haven, Conn.: Yale University Press, 1927) (“Morgan, Law of Evidence”) (denigrating evidence writers basing their decisions on “a priori arguments”).Google Scholar

49 See White, , 58 Va. L Rev. at 1007–8. See also Pound, “Popular Dissatisfaction” at 415 (cited in note 13) (“Absolute theories of morals and supernatural sanctions have lost their hold”). John Henry Wigmore, Preface, Code of Evidence xiii (3d ed. 1942) (“ALL THE RULES IN THE WORLD WILL NOT GET US SUBSTANTIAL JUSTICE IF THE JUDGES AND THE LAWYERS HAVE NOT THE CORRECT LIVING MORAL ATTITUDE TOWARDS SUBSTANTIAL JUSTICE”). See also John Henry Wigmore, “The American Law Institute Code of Evidence Rules: A Dissent,” 28 A.B.A.J. 23 (1942) (“The purpose of these formulations is not merely to restate the rules of Evidence as they are, but as they ought to be and can predictably be”) (emphasis in original).Google Scholar

50 Wigmore, John Henry, “The Spark That Kindled the White Flame of Progress,” 20 J. Am. Jud Soc'y 176 (1937).Google Scholar

51 Id. at 178 (emphasis in original).Google Scholar

52 Tolman, Edgar Bronson, “Historical Beginnings of Procedural Reform Movement in This Country—Principles to Be Observed in Making Rules,” 22 A.B.A.J. 783, 784 (1936).Google Scholar

53 Hull, , 8 Law & Hist. Rev. 58 (cited in note 13).Google Scholar

54 Wigmore, , 20 J. Am. Jud. Soc'y at 178.Google Scholar

55 On Pound, see Paul Sayre, The Life of Roscoe Pound (Iowa City: State University of Iowa, 1948); David Wigdor, Roscoe Pound: Philosopher of Law (Westport, Conn.: Greenwood Press, 1974). Regarding Harvard's preeminence, compare Arthur Sutherland, The Law at Harvard: A History of Ideas and Men, 1817–1967 (Cambridge, Mass.: Harvard University Press, Belknap Press, 1967) (“Sutherland, The Law at Harvard”), with Kalman, Legal Realism (cited in note 1).Google Scholar

56 Tolman, , 22 A.B.A.J. See also 4 Wright & Miller, Federal Practice at § 1003 (cited in note 13). An exhaustive treatment of the reform of federal civil procedure is Stephen B. Burbank, “The Rules Enabling Act of 1934,” 130 U. Pa L. Rev. 1015 (1982).Google Scholar

57 Harley, Herbert, “The American Judicature Society: An Interpretation,” 62 U. Pa. L. Rev. (1913); see “A Salute to Herbert Harley,” 58 A.B.A.J. 161 (1972).Google Scholar

58 Harley, , 62 U. Pa L. Rev. at 353.Google Scholar

59 See Hull, , 8 Law & Hist. Rev. at 6265.Google Scholar

60 Id. at 65.Google Scholar

61 Id. at 67–70.Google Scholar

62 Morgan, , Law of Evidence vii (cited in note 48).Google Scholar

63 Id. at viii.Google Scholar

64 Tolman, , 22 A.B.A.J. at 784 (cited in note 52). See Burbank, , 130 U. Pa. L. Rev. at 1069–70. Taft had personally supported the merger of law and equity as early as 1914, as president of the American Bar Association, and had urged procedural reforms on the model of the English legal system as early as 1909. See id. at 1048, 1051.Google Scholar

65 See Hull, , 8 Law & Hist. Rev. at 7680 (cited in note 13).Google Scholar

66 Id. at 85.Google Scholar

67 The American Law Institute eventually undertook the Restatement of the law in nine discrete areas of private law: agency, conflicts, contracts, judgments, property, restitution, security, torts, and trusts. The institute's executive secretary was William Draper Lewis. After listening to Roscoe Pound's St. Paul address to the ABA, Lewis joined with Wigmore in resolving to do something to reform the American administration of justice. Nearly 20 years later, Lewis wrote that the institute would also “promote those changes which will tend better to adapt the laws to the needs of life.”Hull, , 8 Law & Hist. Rev. at 83 (Quoting “Report of the Committee on the Establishment of a Permanent Organization for the Improvement of the Law Proposing the Establishment of an American Law Institute,” 1 ALI Proc. (1923). In his article “Mechanical Jurisprudence” (8 Colum. L Rev. at 622 (cited in note 26)), Pound suggested that legal scholars test the conceptions of the common law “to lay sure the foundations for the ultimate legislative restatement of the law.Google Scholar

68 See Wigmore, John Henry, “A Critique of the Federal Court Rules Draft—Three Larger Aspects of the Work Which Require Further Consideration,” 22 A.B.A.J. 811, 812 (1936).Google Scholar

69 Mitchell, William D., “Attitude of Advisory Committee—Events Leading to Proposal for Uniform Rules—Problems on Which Discussion Is Invited,” 22 A.B.A.J. 780, 780 (1936).Google Scholar

70 Tolman, , 22 A.B.A.J. at 784 (cited in note 52) (‘After years of study, during all which time Roscoe Pound continued as the mentor of the committee and its draftsman’). See also Burbank, 130 U. Pa. L. Rev. at 1045–48 (cited in note 56).Google Scholar

71 Id. at 1095. see also 4 Wright & Miller, Federal Practice at § 1003 (cited in note 13).Google Scholar

72 James William Moore, Born in Condon, Ore., on 22 Sept. 1905, received his law degree from the University of Chicago in 1933. He received a J.S.D. from Yale in 1935 and from 1935 to 1943 was an instructor at Yale. He became a professor at Yale in 1943. Moore is the author of Moore's Federal Practice, first published as a three-volume work in 1938. 2 Who's Who in America (43d ed. 1984–85).Google Scholar

73 Clark, Charles E. & James, Wm Moore, , “A New Federal Civil Procedure—I. The Background,” 44 Yale L.J 387 (1935).CrossRefGoogle Scholar

74 Fed. R. Civ. P. 2.Google Scholar

75 Wright & Miller, Federal Practice at § 1003 (cited in note 13). Justice Brandeis disapproved of the adoption of the Rules. See West Publishing Company, Federal Rules of Civil Procedure 6 (1989–1990).Google Scholar

76 See Tolman, , 22 A.B.A.J. at 784 (cited in note 52) (quoting Pound on the efficacy of a general system of procedure).Google Scholar

77 One historian of the law of procedure has concluded that the Federal Rules of Civil Procedure is the story of the triumph of equity over common law. Stephen N. Subrin, “How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective,” 135 U. Pa. L. Rev. 909 (1987). The 50th anniversary of the Federal Rules of Civil Procedure led to several ruminations on the impact of the rules on legal thought and the legal profession. See Burbank, Stephen B., “Of Rules and Discretion: The Supreme Court, Federal Rules and Common Law,” 63 Notre Dame L. Rev. 693 (1988); Subrin, Stephen N., “Federal Rules, Local Rules, and State Rules: Uniformity, Divergence, and Emerging Procedural Patterns,” 137 U. Pa. L Rev. 1999 (1989); Minow, Martha, “Some Realism about Rulism: A Parable for the Fiftieth Anniversary of the Federal Rules of Civil Procedure,” 137 U. Pa. L Rev. 2249 (1989).Google Scholar

78 John Henry Wigmore, Cock of Evidence (1st ed. 1910).Google Scholar

79 The proposals included giving the judge the discretion not to abide by rules of evidence concerning matters not in dispute, allowing the judge to comment on the weight of the evidence, abolishing Dead Man's statutes, admitting declarations of dead persons, and simplifying and modernizing the business records exception to hearsay.Google Scholar

80 See note 2.Google Scholar

81 Morgan, Law of Evidence xii n.1 (cited in note 48) (emphasis in original). See I Wigmore, Treatise§ 8c (2d ed. 1923).Google Scholar

82 Morgan, Law of Evidence xiii.Google Scholar

83 Id. at 68.Google Scholar

84 Id. at 66.Google Scholar

85 Id. at 67.Google Scholar

86 Id. at 68.Google Scholar

87 Id. at viii.Google Scholar

88 Only one proposal suggested by the Commonwealth Fund's Evidence Committee eventually was adopted. See 21 Wright & Graham, Federal Practice at § 5005 (business records exception to the hearsay rule). In 1936 the ABA embraced three of the five proposals.Google Scholar

89 See Wigmore, , 22 A.B.A.J. at 813 (cited in note 68) (noting the infeasibility of offering a code of federal evidence rules when there was no existing state code of evidence). See also 4 Proceedings of Meeting of Advisory Committee on Rules for Civil Procedure of the Supreme Court of the United States 974 (2025 Feb. 1936). quoted in Burbank, 63 Notre Dame L Rev. 718 n.187 (cited in note 77) (“In a discussion about the original Advisory Committee's power to recommend Federal Rules on matters of evidence, Professor Morgan observed: I think, if you put that up to the Court, they would say, as the servant girl said, “It is such a little baby.” (Laughter)”).Google Scholar

90 See Burbank, , 130 U. Pa. L. Rev. at 1137–43 (cited in note 56) (discussing the Advisory Committee's concerns about their power to draft federal rules of evidence and their distinguishing rules regarding the mode of taking evidence and rules regarding the admissibility of evidence).Google Scholar

91 Report of the Committee on Improvements in the Law of Evidence,” 63 A.B.A. Rep. 570 (1938) (“‘Report on Improvements’”).Google Scholar

92 Id. at 570.Google Scholar

93 Id. at 576.Google Scholar

94 Id. at 571. The final general proposal adopted by the committee urged that state legislatures “make no changes in the rules of evidence without due notice and opportunity of hearing to the state and local bar associations.”Id. at 580. This was another tenet of progressivism, which distrusted the political nature of legislatures in favor of the “nonpolitical” impartiality of experts.Google Scholar

95 Id. at 576–77.Google Scholar

96 Id. at 576.Google Scholar

97 No more than 44 Advisory Committee members voted on any one proposal.Google Scholar

98 William Draper Lewis, “Introduction,” in American Law institute, Model Code of Evidence viii (Philadelphia: American Law Institute), 1942) (“Lewis, ‘Introduction’”).Google Scholar

99 Id. at ix.Google Scholar

100 17 ALI Proc. 6465 (1940).Google Scholar

101 These Postulates formed the basis of Wigmore's Code of Evidence, the second edition of which had been published in 1935 (“Wigmore. Code 2d”).Google Scholar

102 Id. A third edition of the Code of Evidence was published in 1942, shortly before the ALI adopted the Model Code of Evidence.Google Scholar

103 See American Law Institute, Code of Evidence Tentative Draft No. 1 (Appendix) 112 (1940) (“ALI, Code”).Google Scholar

104 See id. at 115; see also 17 ALI Proc. 66–70 (1940). Postulate IV stated: This Code, in aiming as it does to become a practical guide in trials, must not be content with abstractions, but must specifically deal with all the concrete rules exemplifying the application of an abstraction, that have been passed upon in a majority of jurisdictions; the Code specifically either repudiating or affirming these rules.—If the objection be made that the law of Evidence should no longer remain a network of petty detailed rules, the answers are, first, that both Bench and Bar need their guidance in order that a normal routine be ordinarily followed for speedy dispatch at trials without discussion; secondly, that the Bar needs them in order to prepare evidence for trial among normal expected lines; and, thirdly, that the really effective way to eliminate the present frequent overemphasis on detailed concrete rules, is to provide that they shall be only guides, not chains—directory, not mandatory,—and therefore to forbid the review of the Trial Court's rulings, except in extreme instances.Google Scholar

See ALI, Code (Appendix) 111–12 (emphasis in original).Google Scholar

105 I Wigmore, Treatise at § 8a (3d ed. 1940) (cited in note 13).Google Scholar

107 Wigmore, Preface, Code 2d at xiii (cited in note 101). See note 104.Google Scholar

108 17 ALI Proc. 70 (1940).Google Scholar

109 Edmund M. Morgan, Foreword, in American Law Institute, Model Code of Evidence 4 (Philadelphia: American Law Institute, 1942) (‘Morgan, Foreword’). Morgan believed that it was wishful thinking to expect the trial court to take an exclusively intellectual approach to matters of evidence, and to understand detailed rules as directory rather than mandatory, or to expect trial or appellate courts to clearly demarcate the line between issues of fact and issues of law in evidence. See also Edmund M. Morgan, “The Model Code of Evidence,” 39 Proc. Vt. B. Ass'n 94, 100 (1945) (“If a trial is to be a rational proceeding with a competent judge in charge, he must be given a large measure of discretion. A trial cannot be a purely mechanical performance”). In an earlier book review, Morgan stated, “To be sure, the jury is often swayed by sympathy and prejudice; but are trial judges motivated solely by intellectual impulses?” Edmund M. Morgan, Book Review, 46 Harv. L. Rev. 1203, 1203 (1933), reviewing Joseph N. Ulman, A Judge Takes the Stand (1933).Google Scholar

110 See 17 ALI Proc. 82 (1940). This was consistent with the structure of the Federal Rules of Civil Procedure, which Clark, as Reporter to the Advisory Committee, had been instrumental in drafting. ABA members were made aware of this difference of opinion among Clark, Morgan, and Wigmore in the June 1940 issue of the ABA Journal, which reported the institute's discussion of Tentative Draft No. 1 of the Model Code of Evidence. See “American Law Institute Holds Eighteenth Annual Meeting,” 26 A.B.A.J. 476 (1940).Google Scholar

111 See Morgan, Foreword at 13.CrossRefGoogle Scholar

112 All had the same title. Morgan, Edmund M., “The Code of Evidence Proposed by the American Law Institute,” 27 A.B.A.J. 539 (Sept. 1941); 27 A.B.A.J. 587 (Oct. 1941); 27 A.B.A.J. 694 (Nov. 1941); 27 A.B.A.J. 742 (Dec. 1941).Google Scholar

113 Morgan, , 27 A.B.A.J. at 541.Google Scholar

114 Id. In his Foreword to the Model Code of Evidence (at 12), published in fall 1942, Morgan added: “It would give the restatement a legislative form, make it rigid and hamper the normal growth of the law.”.Google Scholar

115 Morgan, , 27 A.B.A.J. at 541.Google Scholar

117 See Wigmore, , 28 A.B.A.J. (cited in note 49).Google Scholar

118 Id. at 23.Google Scholar

119 Id. (emphasis in original).Google Scholar

120 Sessions of American Law Institute,” 28 A.B.A.J 401 (1942).Google Scholar

121 68 A.B.A. Rep. 146 (1943).Google Scholar

122 See “Spotlight on Evidence,” 27 J. Am. Jud. Soc'y 113, 115 (1943). The ALI's official position was that it did not “urge the immediate recommendation of the Code as a whole by a bar association or its adoption by a legislature or a court. Rather, it submits the work to the legal profession of the country, on its merits, for such action as the bench and bar feel prepared to take after the work has become known.”Id. at 113.Google Scholar

123 University of Texas Professor Charles T. McCormick, A member of the Evidence Editorial group, coordinated the discussion of the Model Code of Evidence at the 1943 Texas State Bar Association meeting. Id. at 114.Google Scholar

125 69 A.B.A. Rep. 185 (1944). The report of the committee on Jurisprudence and Law Reform is found at 69 A.B.A. Rep. 251.Google Scholar

126 Report of Committee on Administration of Justice on Model Code of Evidence,” 19 J. St. B. Calif 262 (1944). I assume that this rhetoric was an attempt to equate the Model Code with the evil of the civil law system. The Model Code's radical reformation of the law of evidence was not modeled on civil law, although, like civil law, it gave greater power to the trial judge and less to the attorneys.Google Scholar

127 30 A.B.A.J. 700 (1944). A number of addresses were given and articles written for state bar associations from 1941 to 1944 by supporters of the Code and members of the Evidence Editorial group, but nothing was printed in the ABA Journal.Google Scholar

128 There is nothing in the 1945 or 1946 ABA Journals or ABA Reports on reform of the law of evidence. In 72 A.B.A. Rep. 253 (1947), There is the following from the ABA Committee on Improving the Administration of Justice: “The committee in Missouri is cooperating with a committee of the Missouri Bar in its work on a new code of Evidence.” The State Bar of Missouri drafted a proposed Code based on reformation of Missouri rules of evidence rather than on the Model Code. See Symposium, “A Code of Evidence for Missouri,” 17 U.K.C.L. Rev. 1 (1949). See also “Notes and Comments on the Code of Evidence Proposed by the Missouri Bar,” 10 J. Mo. B. 177 (1954).Google Scholar

129 On the last point, see 21 Wright & Graham, Federal Practice at § 5005.Google Scholar

130 See Morgan, Law of Evidence 66–68 (cited in note 48).Google Scholar

131 See Wigmore, , 22 A.B.A.J. at 24 (cited in note 49). Compare Wigmore, “Preface,” in Wigmore, Code 2d at xiii (cited in note 101) (suggesting that particular rules would be guides, not chains, thus giving the trial court greater authority to decide evidentiary issues without fear of appellate reversal).Google Scholar

132 Id.“What the law of Evidence, and of Procedure, nowadays most needs is that the men who are our judges and our lawyers shall firmly dispose themselves to get at the truth and the merits of the case before them.”.Google Scholar

133 Lewis, “Introduction” at viii (cited in note 98).Google Scholar

134 Morgan, , 27 A.B.A.J. at 539 (cited in note 112). This is repeated in essence in Morgan, Foreword at 3 (cited in note 109). This view is foreshadowed in a 1936 book review, in which Morgan suggested that the book be read by no one interested in believing “that a law suit is a proceeding for the discovery of truth by rational processes.” Morgan, Edmund M., Book Review, 49 Harv. L Rev. 1387, 1389 (1936), reviewing Irving Goldstein, Trial Technique (1935). See also Edmund M. Morgan, “Hearsay Dangers and the Application of the Hearsay Concept,” 62 Harv. L. Rev. 177, 184 (1948).Google Scholar

135 Morgan, , Foreword at 3–4. A similar statement is made in Morgan, 27 A.B.A.J. at 539.Google Scholar

136 Wright & Graham, Federal Ractice at § 5005 n.45. See also Leon Green, Judge and Jury 376 (Kansas City, Mo.: Vernon Law Book Co., 1930) (concluding that judicial approval of the jury trial was based on its “prime political function” of absorbing citizen discontent with verdicts). A similar statement by legal process scholars Henry Hart and John McNaughton is found in “Evidence and Inference in the Law,” 87 Daedalus 40, 44 (1958) (“Hart & McNaughton, ‘Evidence and Inference’”): “A contested lawsuit is society's last line of defense in the indispensable effort to secure the peaceful settlement of social conflicts.”.Google Scholar

137 See text accompanying notes 162–64. See also Morgan, 27 A.B.A.J. at 541 (disparaging the view “that the trial is to be a battle between the great champions of the contending parties; a battle of wits between their lawyers with the judge as umpire and the jury making the decision without advice from the judge”).Google Scholar

138 19 J. St. B. Calif. at 281 (cited in note 126).Google Scholar

139 G. Louis Joughin & Edmund M. Morgan, The Legacy of Sacco and Vanzetti 184 (New York: Harcourt, Brace & Co., 1948) (“Joughin & Morgan, Sacco and Vanzetti”). According to the Preface, Morgan was the sole author of the chapters concerning the law of the Sacco and Vanzetti case. Id at v–vi.CrossRefGoogle Scholar

140 Morgan, , 27 A.B.A.J. at 540; Morgan, Foreword at 6.Google Scholar

141 Wigmore, Treatise at § 8c (3d ed. 1940) (cited in note 13). See also “Report on Improvements” at 576 (cited in note 91) (“All will agree that the body of the rules of evidence, in their skeleton framework, are wise and wholesome; in short, they are a valuable and unique contribution to the world's expedients in the investigation of truth”).Google Scholar

142 “Report on Improvements” at 572 So in any proposed improvement of a rule of law, it is wise at the same time to take measures to insure a suitable environment and administration. Any proposed improvement in the rules of evidence must heed the same warning”); see also Twining, Theories of Evidence 161 (cited in note 4) (“Wigmore's assumption [was] that the law of evidence is par excellence ‘lawyer's law.’ Wigmore was only mildly critical of surviving evidence doctrine. A general simplification and the abolition of a few archaic survivals would be welcome, but on the whole there was no need for radical reform” (footnotes omitted)).Google Scholar

143 21 Wright, & Graham, , Federal Practice at § 5005 n.45.Google Scholar

144 Some secondary studies about legal realism not elsewhere cited in this article include Grant Gilmore, ‘Legal Realism: Its Cause and Cure,’ 70 Yale L.J. 1037 (1961); Id, The Death of Contract (Columbus: Ohio State University Press, 1974); Wilfrid E. Rumble, Jr., American Legal Realism (Ithaca, N.Y.: Cornell University Press, 1968); Thomas W. Bechtler, ed., American Legal Realism Reevaluated in Law in a Social Context: Liber Amicorum Honouring Professor Lon L. Fuller 1 (Dordrecht, The Netherlands: Kluwer, 1978); and Robert Summers, instrumentalism and American Legal Theory (Ithaca, N.Y.: Cornell University Press, 1982). See generally Joseph William Singer, “Legal Realism Now,” 76 Calif. L Rev. 465, 476 n. 40 (1988) (listing primary and secondary sources regarding American legal realism).Google Scholar

145 See Llewellyn, Karl, “A Realistic Jurisprudence—The Next Step,” 30 Colum. L. Rev 431 (1930).CrossRefGoogle Scholar

146 In addition, through its reliance on the learning in psychology, sociology, as well as non-Euclidean geometry, see Purcell, Crisis of Democratic Theory 74–94 (cited in note 14), realism also suggested an empirical advance over the primitive empiricism of sociological jurisprudence. The empirical “advances” made by the realists are extremely well depicted by Professor John Henry Schlegel. See his “American Legal Realism and Empirical Social Science: From the Yale Experience,” 28 Buffalo L. Rev. 459 (1979); Id., ‘American Legal Realism and Empirical Social Science: The Singular Case of Underhill Moore,’ 29 Buffalo L. Rev. 195 (1980).Google Scholar

147 Pound, Roscoe, “The Call for a Realistic Jurisprudence,” 44 Harv. L. Rev 697 (1931).CrossRefGoogle Scholar

148 Llewellyn granted from Yale Law School in 1918 at the top of his class. He was the editor-in-chief of the Yale Law loud and stayed a year after graduating to ensure the journal's continued publication. After working for National City Bank (the predecessor of Citicorp) and the law firm of Shearman & Sterling, he began teaching at Yale in 1922. Llewellyn became a professor at Columbia in 1925 and stayed there until 1951, when he began teaching at the University of Chicago law school. He died in 1962. Llewellyn was influenced by his teachers Arthur Corbin and Wesley Hohfeld, who were intellectual parents to legal realism. A biography of the work of Llewellyn is William Twining, Karl Lkwellyn and the Realist Movement (Norman: University of Oklahoma Press, 1973; reprinted 1985) (‘Twining, Karl Llewellyn’).Google Scholar

149 Llewellyn, , 30 Colum. L. Rev. For a revised history of the Pound-Llewellyn debate, see Hull, N. E. H., ‘Some Realism about the Llewellyn-Pound Exchange over Realism: The Newly Uncovered Private Correspondence.’ 1987 Wis. L Rev. 921.Google Scholar

150 Llewellyn, Karl, “Some Realism about Realism—Responding to Dean Pound,” 44 Ham L. Rev. 1222, 1236 (1931) (emphasis in original).CrossRefGoogle Scholar

151 Llewellyn, Karl, “On the Good, the True, the Beautiful, in Law,” 9 U. Chi. L. Rev. 224, 264 (1942). Twining, Karl Llewellyn 123–24, calls Llewellyn a moral relativist, albeit one who searched for absolute values. See also Elizabeth Mensch & Alan Freeman, “The Politics of Virtue: Animals, Theology and Abortion,” 25 Ga. L. Rev. 923, 991–92 n.222 (1991) (quoting Llewellyn, Position Re: Religion (1943), in which Llewellyn discusses his emerging religiousness).CrossRefGoogle Scholar

152 Nelles, Walter, Book Review, 33 Colum. L. Rev. 763, 767 (1933), reviewing Felix Cohen, Ethical Systems and Legal Ideals (1933) (emphasis in original), quoted in Purcell, Crisis of Democratic Theory 91 (cited in note 14).CrossRefGoogle Scholar

153 Thurman Arnold, The Symbols of Government 32–33 (New Haven, Conn.: Yale University Press, 1935) (“Arnold, Symbols”); Edward Robinson, Law and the Lawyers 38–43, 188–91 (New York: Macmillan Co., 1935) (“Robinson, Law and Lawyers”). These two books were the result of a seminar (locally nicknamed “The Cave of the Winds”) Arnold and Robinson taught together at Yale Law School in the early 1930s. See Arnold, Symbols v; Robinson, Law and Lawyers vii. See generally Karl Llewellyn, Book Review, 5 Brooklyn L. Rev. 219 (1935), reviewing both books.Google Scholar

154 Lon L. Fuller, The Law in Quest of Itself 5 (Chicago: Foundation Press, 1940). See also Lon L. Fuller, ‘American Legal Realism,’ 82 U. Pa. L. Rev. 429 (1934).Google Scholar

155 Morris R. Cohen, “Justice Holmes and the Nature of Law,” 31 Colum. L Rev. 352, 357 (1931). See also Id., Reason and Nature Bk. III, ch. 4 (1931), excerpted in Morris R. Cohen & Felix S. Cohen, Readings in Jurisprudence and Legal Philosophy 615, 621 (1st ed. 1951): The essence of all doctrines of natural law is the appeal from positive law to justice, from the law that is to the law which ought to be; and unless we are ready to assert that the concept of a law that ought to be is for some reason an inadmissible one, the roots of natural law remain untouched. Now, it is true that the issue has seldom been so sharply put, for to do so is to espouse an amount of dualism between the is and the ought which is shocking to the philosophically respectable… There have not, of course, been wanting intellectual radicals who, in the interests of a strident monism have clearly and conscientiously attempted to eliminate the chasm between the ought and the is, either by denying the former, or by trying to reduce it to a species of the latter.” (Notes omitted On Morris Cohen and legal thought, see David Hollinger, Morris R. Cohen and the Scientific Ideal 165–99 (Cambridge, Mass.: MIT Press, 1975).Google Scholar

156 See Purcell, Crisis of Democratic Theory 164–72 (cited in note 14). The Catholic response was more fully developed after World War 11. See Mensch & Freeman, 25 Ga. L. Rev. at 963–85 (discussing the creation and development of the legal journal Natural Law Forum (now American Journal of Jurisprudence).Google Scholar

157 Hutcheson, Joseph, “The Judgment Intuitive: The Function of the ‘Hunch’ in Judicial Decision,” 14 Cornell L. Q274 (1929). At the beginning of the decade, New York Court of Appeals Justice Benjamin Cardozo had shocked the legal establishment by confessing in The Nature of the Judicial Process, his Storrs lectures at Yale (published by Yale University Press in 1921), that judges exercised discretion in deciding cases.Google Scholar

158 Jerome Frank, Law and the Modem Mind 111 (New York: Brentano's, 1930) (‘Frank, Law and Modem Mind’). On Frank, see Robert Jerome Glennon, The Iconoclast as Reformer: Jerome Frank's Impact on American Law (Ithaca, N.Y.: Cornell University Press, 1985). See also Neil Duxbury, “Jerome Frank and the Legacy of Realism,” 18 J.L & Soc'y 175 (1991).Google Scholar

159 Arnold, Symbols 33–37, 216–19. See also Frank, Law and Modern Mind 100–101 (criticizing the notion of judging on which the ideal of the rule of law is based).Google Scholar

160 See Wigmore, , 28 A.B.A.J. at 24 (cited in note 49) (uncabined judicial discretion would return us to “that primal condition of chaos”).Google Scholar

161 See Purcell, Crisis of Democratic Theory 161–62 (Cited in note 14) (discussing Pound's reaction to the perceived excesses of realism).Google Scholar

162 Arnold, Symbols 129. See also id, “Trial by Combat and the New Deal,” 47 Harv. L Rev. 913 (1934) (presenting an earlier version of chapter 8 of The Symbols of Government); id., “The Role of Substantive Law and Procedure in the Legal Process,” 45 Yale L Rev. 617 (1932) (discussing the idea of the courtroom as theater); id., Book Review, 42 Yale L.J. 459 (1933), reviewing W. P. Barrett, The Trial of Jeanne D'Arc (1932); id., Book Review, 40 Yale L.J. 833 (1931), reviewing Leon Green, Judge and Jury (1930). See also Thurman Arnold & Fleming James, Cases on Trials Judgments and Appeals (St. Paul, Minn.: West, 1936) (a collection of cases, the purpose of which is to convince the reader that the system of trial is better understood as concerned with rhetorical devices rather than the rational resolution of disputes). Arnold's decision to part ways with Charles Clark in using data to reform the rules of procedure is discussed in Schlegel, 28 Buffalo L Rev. at 511–12 (cited in note 146). A sensitive description of Arnold's evolving views is Ayer, 23 Stan. L Rev. (cited in note 46). See also Gene M. Gressley, “Introduction,” in Gressley, ed., Voltaire and the Cowboy: The Letters of Thurman Arnold (Boulder, Colo.: Colorado Associated Press, 1977). Robinson, Law and Lawyers 32, 115, Wrote only in passing about the jury trial, but in the two asides indicated that it might be the case that the primary purpose of a jury trial was the “resolution of an emotional conflict-that it is only secondarily concerned with the fitting of the law to the facts.”Google Scholar

163 Frank, Law and Modern Mind 181. Frank also noted, ‘The decisions of many cases are products of irresponsible jury caprice and prejudice… [T]hat the principal witness for one of the parties is a Mason or a Catholic.… such facts often determine who will win or lose.’ Id at 177–78. See also Jerome Frank, Courts on Trial (Princeton, N.J.: Princeton University Press, 1949).Google Scholar

164 Leon Green, Judge and Jury 395–417 (1930). Green also complained that “[t]he trial judges' power to deal decisively with questions of evidence has constantly dwindled.”Id at 379. There is an elliptical suggestion in Roalfe, Wigmore 228 (cited in note 13), that Green supported Wigmore's view regarding the ALI's Model Code of Evidence, but the single sentence indicating support is terribly unclear.Google Scholar

165 Morgan, Edmund M., Book Review, 13 N.Y.U.L.Q. 322 (1936), Reviewing Robinson's Law and the Lawyers (cited in note 153). The review is written in the second person, in which the “you” Morgan refers to throughout the review is a reference to himself. In general, a search of the Index to Legal Periodicals indicates that professors at Harvard Law School ignored books by realists. Morgan's review is one of a very few by a Harvard Law School professor discussing a “realist” book. Since Robinson's book was the product of a seminar taught with Arnold, and since Robinson and Arnold viewed their books as collaborative efforts, it is curious that Morgan did not review Arnold's Symbols of Government and that he mentioned only in passing Robinson's collaboration with Arnold. Morgan's only public mention of Arnold is found in a speech given to the West Virginia Bar Association in 1941 concerning the Proposed Model Code of the ALL The reference is simply a joke about Arnold leaving West Virginia for Yale. See Morgan, Edmund M., ‘The Proposed Code of Evidence,’ 57 Proc. W. Va B. Ass'n 161 (1942).Google Scholar

166 Morgan, , 13 N.Y.U.L.Q at 324. Interestingly, Morgan took a swipe at Frank's Law and Modem Mind in this book review.Google Scholar

167 See Goodrich, Herbert, “Institute Bards and Yale Reviewers,” 48 Yule L.J 449 (1936).Google Scholar

168 Yale Law School Dean Clark was a member of the Advisory Committee to the Restatement of Property, and Professor Arthur Corbin was the Assistant Reporter to Samuel Williston in the Restatement of Contracts. For a convincing explanation why Corbin agreed to act as Assistant Reporter in the Restatement of Contracts, see Klau, Daniel J., Note, “What Price Certainty? Corbin, Williston, and the Restatement of Contracts,” 70 B.U.L. Rev. 511 (1990).Google Scholar

169 See, e.g., Arnold, Thurman, “The Restatement of the Law of Trusts,” 31 Colum. L. Rev 800 (1931); Clark, Charles, ‘The Restatement of the Law of Contracts,’ 42 Yule L.J. 643 (1933); Arnold, Thurman, “Institute Priests and Yale Observers—A Reply to Dean Goodrich,” 84 U. Pa. L Rev. 811 (1936).CrossRefGoogle Scholar

170 Goodrich, 48 Yak L.J.Google Scholar

171 Robinson wrote: “Our main interest, however, is in the general philosophy of the [Restatement] undertaking, which is plainly founded upon the belief that too much truth about the law is disastrously confusing and that the remedy may be found in an authoritative suppression of the facts rather than in better education of the public and the bar as to the actual psychological and sociological nature of the law.” Robinson, , Law and Lawyers 36 (cited in note 153). Goodrich, 48 Yale L.J. at 451–52.Google Scholar

172 Goodrich, , 48 Yale LJ. at 452.Google Scholar

173 Arnold, , 84 U. Pa. L Rev. 811 (1936).Google Scholar

174 Id. at 813.Google Scholar

175 See Joughin & Morgan, Sacco and Vanzetti (cited in note 139). Morgan's contributions had in part been written 20 years before publication of the book. Id. at v.Google Scholar

176 See 21 Wright & Graham, Federal Practice at § 5005.Google Scholar

177 Jerome Frank, Law and Modem Mind xi (Preface to 6th printing 1948) (cited in note 158). Frank delineated two camps of “realists,” a term he disparaged, rule skeptics and fact skeptics. The other persons categorized as fact skeptics were Leon Green, Max Radin, Thurman Arnold, and William O. Douglas, Along with himself. Id at xii. This preface was separately published in the Syracuse Law Review. See Jerome Frank, “Legal Thinking in Three Dimensions,” 1 Syracuse L Rev. 9, 11 (1949). See also Frank, Courts on Trial 74 (cited in note 163). Morgan critically responded to Frank's claims about “fact skepticism” in a review of Courts on Trial. See Morgan, Book Review, 2 J. Legal Educ. 385 (1950) (“It is difficult for me to see how anyone can teach a course in Evidence or in Procedure without emphasizing the uncertainty not only in the framing and the application of the rules but also, and especially, in the ascertainment of the facts to which the rules are to be applied”).Google Scholar

178 Included in this group were Frankfurter, Felix, Landis, James M., Powell, Thomas Reed, and Gardner, George See Kalman, , Legal Realism 49 (cited in note 1). I would add Professor Zechariah Chafee, an evidence, remedies, and constitutional law scholar, to that list.Google Scholar

179 See Purcell, , Crisis of Democratic Theory 159 (cited in note 14). Gordon, Cf. Robert, “Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography,” 10 Law & Soc'y Rev. 9, 38 n.85 (1975) (Suggesting a revision of Purcell's thesis).Google Scholar

180 See Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America 216 (New York: Oxford University Press, 1976) (discussing the applications to ABA membership of three black lawyers in the early 1940s. The two who publicly challenged the discriminatory practices of the ABA were denied membership, while the third, who remained silent, was admitted).Google Scholar

181 See Morgan, Foreword at 13–16 (cited in note 109).CrossRefGoogle Scholar

182 Id. at 12.Google Scholar

183 Id. at 3.Google Scholar

184 Id. at 4.Google Scholar

186 Id. (emphasis added). See Frank, Law and Modern Mind.Google Scholar

187 A contemporary use of Morgan's distinction is found in the FRE Advisory Committee's Notes. See Advisory Committee's Note, Federal Rule of Evidence 403 (1975) (permitting exclusion of relevant evidence to counter the risk of “inducing decision on a purely emotional basis”).Google Scholar

188 Frank, Law and Modern Mind 147 (cited in note 158).Google Scholar

189 Wright and Graham Write that the heavy concentration of “Eastern Establishment” figures in the Evidence Editorial group also affected the reception of the Model Code of Evidence. 21 Wright & Graham, Federal Practice at § 5005 (“The Code doubtlessly suffered as well from the prejudice of many lawyers toward the Harvardians and Easterners who dominated the drafting Committee”).Google Scholar

190 Morgan, , 29 Tex. L. Rev. 587, 598 (cited in note 47).Google Scholar

192 Id. at 599.Google Scholar

193 Id. at 604.Google Scholar

194 Id. at 607–9. This flipped the progressive notion of expert bureaucratic control and played well with lawyers, concerned as always about the extraordinary discretion given administrative judges and officials.Google Scholar

195 Id. at 610.Google Scholar

196 “Prefatory Note,” in National Conference of Commissioners on Uniform State Laws, Uniform Rules of Evidence 161 (1953) (“Prefatory Note”).Google Scholar

198 By the end of the drafting of the Uniform Rules, the committee was composed of Spencer A. Card, A judge from Kansas; Mason Ladd, a professor at the University of Iowa who had been a member of the committee which prepared the Model Code; Charles T. McCormick Of the University of Texas, also a member of the Model Code Committee; Lucian Morehead, a practitioner from Texas; Maynard Pirsig, a professor at the University of Minnesota; John Pryor, a practitioner in Iowa; Robert Woodside, Pennsylvania Attorney General; and Joe Estes, a Dallas, Texas, lawyer. Earlier in the drafting process, practitioners from New Jersey, Delaware, and Florida had been members of the committee.Google Scholar

199 ‘Prefatory Note’ at 162. The ALI approved the Uniform Rules of Evidence at its 1954 annual meeting. 31 ALI Proc. 44 (1954). Morgan supported approval by the ALL 31 ALI Proc. 36, 41.Google Scholar

200 ‘Prefatory Note’ at 161. See also Gard, Spencer A., “The Uniform Rules of Evidence,” 31 Tulane L. Rev. 19, 23 (1956) (“Sensible change without shock is an underlying policy of the Rules. That is the reason why the Rules take a somewhat conservative approach to the problem of hearsay”).Google Scholar

201 “Also, the general policy of the draftsmen for the Model Code in covering the matter in the form of rather broad general rules has been adopted, in preference to a policy of voluminous detail.”“Prefatory Note” at 162.Google Scholar

202 In1957, Charles Joiner sketched the history of the Federal Rules Advisory Committee's treatment or rather, lack of treatment, of the law of evidence, from the 1930s to 1956. He noted that the Advisory Committee evinced no interest in drafting rules of evidence, and that the Supreme Court had discharged the Advisory Committee in 1956. Joiner suggested to the Judicial Conference the study and adoption of uniform rules of evidence in the federal courts. Charles Joiner, “Uniform Rules of Evidence for the Federal Courts,” 20F.R.D. 429–31 (1957).Google Scholar

203 Kansas, , New Jersey, and Utah adopted versions of the Uniform Rules of Evidence, as did the Virgin Islands. The relationship between California's evidence code and the Uniform Rules is quite confused. See Graham, Kenneth W. Jr., “California's ‘Restatement’ of Evidence: Some Reflections on Appellate Repair of the Codification Fiasco,” 4 Loy. L.A.L. Rev. 279, 279 (1971) (“After studying the problem for nearly a decade the Commission came to the conclusion that what California needed was not the Uniform Rules but a Restatement of California Evidence”).Google Scholar

204 See Joiner, , 20 F.R.D. at 439.Google Scholar

205 See Henry M. Hart & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 161 (Cambridge, Mass.: private printing, 1958) (“Hart & Sacks, The Legal Process”). Two studies of reasoned elaboration are White, 59 Va. L. Rev. (cited in note 14), and Gary Peller, “Neutral Principles in the 1950s,” 21 U. Mich. J.L. Reform 556 (1989).Google Scholar

206 Hart & Sacks, The Legal Process 161.Google Scholar

208 Id. See Morgan, , 13 N.Y.U.L.Q. at 323. In reviewing Robinson's book, Morgan noted, “He does not disguise the fact that a court must not only be able to come to what it regards as a righteous decision but must also be able to produce a respectable opinion in support of it.” This fits within reasoned elaboration in two respects: First, passive language that a court must “come to what it regards as a righteous decision” implicitly assumes that an inquiry whether the decision was “right” is either unanswerable or unimportant. Second, the center of reasoned elaboration was whether the court supported its decision by principled reasoning in its opinion. See also Hart & McNaughton, “Evidence and Inference” at 45 (cited in note 136) (“While it is of course important that the court be right in its determinations of fact, it is also important that the court decide the case when the parties ask for the decision and on the basis of the evidence presented. A decision must be made now, one way or the other”).Google Scholar

209 Hart & Sacks, The Legal Process 162.Google Scholar

210 See Kalman, Legal Realism 49 (cited in note 1). See note 178.Google Scholar

211 Id. at 51 (quoting an undated memorandum from Powell).Google Scholar

212 Felix Frankfurter & James Landis, The Business of the Supreme Court 243 (New York: Macmillan Co., 1928). ‘The story of these momentous political and economic issues lies concealed beneath the surface technicalities governing the jurisdiction of the Federal Courts.’Id. at vii.Google Scholar

213 See Alexander Bickel, The Least Dangerous Branch 25–26 (paper;) 2d ed. New Haven, Conn.: Yale University Press, 1986) (“Judges have, or should have, the leisure, the training, and the insulation to follow the ways of the scholar in pursuing the ends of government”).Google Scholar

214 Sutherland, The Law at Harvard 302 (cited in note 55). On Landis, see Donald R. Ritchie, James M. Landis: Dean of the Regulators (Cambridge, Mass.: Harvard University Press, 1980).Google Scholar

215 See Lon L. Fuller, The Morality of Law (2d ed. New Haven, Conn.: Yale University Press, 1969).Google Scholar

216 See Hart & Sacks, The Legal Process 4–5 (cited in note 205).Google Scholar

217 Id. at 161–79.Google Scholar

218 See Amar, 102 Harv. L. Rev. at 691 (cited in note 14). See also Philip Bobbitt, Constitutional Fate 43 (New Haven, Conn.: Yale University Press, 1982) (“It's not what judges do, Hart told us, it's how they do it”; emphasis in original). Hart & McNaughton, “Evidence and Inference” at 145 (cited in note 136).Google Scholar

219 American Law Institute, Annual Report 7 (1953).Google Scholar

220 Herbert Goodrich, Introduction, Restatement (Second) of Agency vii (St. Paul, Minn.: American Law Institute Pubs., 1959) (“Few of the rules laid down in the first edition have been changed”). The Introduction itself was dated 11 April 1958.Google Scholar

221 See also Grant Gilmore, The Ages of American Law 83–86 (New Haven, Conn.: Yale University Press, 1977) (“Gilmore, Ages of American Law”) (discussing the joint work of the ALI and the National Conference of Commissioners on Uniform State Laws supporting the drafting of the Uniform Commercial Code and its “conservative” nature).Google Scholar

222 Hart & Sacks, The Legal Process.Google Scholar

223 Henry M. Hart & Herbert Wechsler, The Federal Courts and the Federal System (Westbury, Conn.: Foundation Press, 1953).Google Scholar

224 See Wechsler, Herbert, “Toward Neutral Principles of Constitutional Law,” 73 Haw. L. Rev. 1 (1959).CrossRefGoogle Scholar

225 Herbert Wechsler, Introduction, Restatement (Second) of Conflicts vii (St. Paul, Minn.: American Law Institute Pubs., 1971).Google Scholar

226 Hart & Sacks, The Legal Process 179 (cited in note 205).Google Scholar

227 For example, former Harvard University history professor Alan Brinkley, now at Columbia University, wrote a review of the 1988 Presidential campaign. Alan Brinkley, “A Savage and Demeaning Ritual,”N.Y. Times Bk. Rev., 14 Oct. 1990, at 1, col. 1, reviewing Sidney Blumenthal, Pledging Allegiance (1990). In the review, Brinkley suggests that Michael Dukakis's “image of public life reflected the value-neutral credo of Harvard University's Kennedy School of Government, where he taught for several years between his first and second terms as Governor of Massachusetts.”Id. at 28. Since Dukakis was a 1960 graduate of the Harvard Law School, he instead may have reflected the process-based credo of reasoned elaboration. My point is that jurisprudential movements often are implemented after some delay. For example, since the Supreme Court presently consists of three 1960s graduates of the Harvard Law School, the Court eventually may attempt to revive reasoned elaboration.Google Scholar

228 374 U.S. 483 (1954).Google Scholar

229 See Wechsler, , 73 Harv. L. Rev.Google Scholar

230 See White, , 59 Va. L Rev. at 291–94 (cited in note 14). The Hart/Sacks Legal Process teaching materials, although never published in final form, were used by many law schools in teaching courses entitled Legal Process in the 1960s and 1970s. Further, the Hart/Wechsler casebook on federal courts dominated that field for many years.Google Scholar

231 Comm. on Rules of Practice and Procedure of the Judicial Conference of the United States, ‘A Preliminary Report on the Advisability and Feasibility of Developing Uniform Rules of Evidence for the United States District Courts,’ 30 F.R.D. 73, 76 (1962).Google Scholar

232 Green, Thomas F. Jr., “Preliminary Study of the Advisability and Feasibility of Developing Uniform Rules of Evidence for the Federal Courts,” 30 F.R.D. 79, 99105, 110–13 (1962). The report mentioned the Model Code of Evidence as “a starting point” for the Committee which wrote the Uniform Rules of Evidence. Id. at 111. At the end of the report, the Special Advisory Committee reprinted the ABA resolution in favor of uniform federal rules of evidence. Notably absent from the ABA resolution was any mention of the Model Code of Evidence. Instead, there was an explicit statement that a drafting committee “adapt the Uniform Rules of Evidence.” Id. at 113.Google Scholar

233 21 Wright & Graham, Federal Practice at § 5006.Google Scholar

234 Professor Cleary graduated from the University of Illinois Law School in 1932 and received his J.S.D. in 1933 from Yale Law School. He taught at the University of Illinois from 1946 to 1967 and at Arizona State University from 1967 to 1977, when he retired. ‘Biography of Edward W. Cleary,’ 1977 Ariz. St. L.J., 245. See also “Tribute to Edward W. Cleary,” 1991 U. III. L. Rev. 250. Cleary died in January 1990.Google Scholar

235 Rules of Evidence, Pub. L. 93–595, 88 Stats. 1296 (1974).Google Scholar

236 Proposed Federal Rule of Evidence: Hearings Before the Subcomm. on Reform of Federal Criminal Laws of the House Comm. on the Judiciary, 93d Cong. 1st Sess. 91 (1973) (statement of Professor Cleary).Google Scholar

237 See Evid, Fed R. 403 (giving the trial court the discretion to exclude relevant evidence if “its probative value is substantially outweighed by the danger of unfair prejudice”). See generally Mengler, Thomas M., “The Theory of Discretion in the Federal Rules of Evidence,” 74 Iowa L. Rev. 413 (1989); Waltz, Jon R., “Judicial Discretion in the Admission of Evidence under the Federal Rules of Evidence,” 79 Nw. L. Rev. 1097 (1984–85).Google Scholar

238 Fed R. Evid 102. This rule was in the preliminary draft of the FRE and remained unchanged throughout the drafting process. The drafters chose not to attempt to split the difference, as attempted by Hart & McNaughton in a 1958 article. Hart & McNaughton, “Evidence and Inference” at 45 (cited in note 136). (In a lawsuit “something more is at stake than the truth only of the specific matter in contest. There is at stake also that confidence of the public generally in the impartiality and fairness of public settlement of disputes”).Google Scholar

239 Thus, I think it wrong to assume that the procedural reformers of the 1930s and 1940s were naive in their reliance on the good faith of judges and government. Instead, they seemed well aware of the limitations of trial courts, as indicated by one of Morgan's last essays on evidentiary reform. See Morgan, Edmund M., “Practical Difficulties Impeding Reform in the Law of Evidence,” 14 Vand. L. Rev. 725, 734–35 (1961) (criticizing Professor David Louisell's suggestion that real reform lay in selecting and securing good trial judges as “opposing a proposal for a reform which lies in the sphere of present probability by shifting to a proposal for a more far-reaching change that is beyond the range of adoption in the foreseeable future”).Google Scholar

240 See, e.g., Borden, Luther V., 7 How. (48 U.S.) 1, 41 (1852) (“It is the province of the court to expound the law, not to make it”).Google Scholar

241 Hart & Sacks, The Legal Process (cited in note 205).Google Scholar

242 This short and biased summary is more thoroughly stated in White, 59 Va. L. Rev. at 286–91 (cited in note 14). See also Bobbitt, , Constitutional Fate 4258 (cited in note 218). One example in the law of evidence is Cleary's essay, “Preliminary Notes on Reading the Rules of Evidence,” 57 Neb. L Rev. 908 (1978), in which he suggests which materials ought to be used in interpreting the FRE.Google Scholar

243 See especially Wechsler, 73 Harv. L Rev. (cited in note 224). See also Bobbitt, , Constitutional Fate 4447.Google Scholar

244 See Gilmore, Ages of American Law 72–74 (cited in note 221).Google Scholar

245 Keyes, W. Noel, “The Restatement (Second): Its Misleading Quality and a Proposal for Its Amelioration,” 13 Pepperdine L. Rev. 23, 28 (1985).Google Scholar

246 There is a very complex interaction regarding the relationship of the development of the legal profession and legal education and their impact upon the American Law Institute's Restatement projects. My tentative thoughts are that the elite within the bar and legal academia wanted to use the (First) Restatements both to create greater certainty and uniformity in the law of various states and to ensure a form of control over the legal systems of the various states. By the time of the (Second) Restatements, the main purpose was to create opportunities for graduated doctrinal change, like § 402A of the Restatement (Second) of Torts, given the assumption of the subjectivity of legal decision making. See Herbert Wechsler, “Restatements and Legal Change: Problems of Policy in the Restatement Work of the American Law Institute,” 13 Saint Louis U.L.J. 185 (1969); compare W. Noel Keyes, 13 Pepperdine L. Rev., with John W. Wade, “The Restatement (Second): A Tribute to Its Increasingly Advantageous Quality, and an Encouragement to Continue the Trend,” 13 Pepperdine L. Rev. 59 (1985). Cf. Hull, 8 Law B Hist. Rev. (cited in note 13) (concluding that the creation of the ALI was a product of “progressive-pragmatists,” whose interest in the reform of law was antithetical to the conservative interests of formalists interested in freezing law). See generally G. Edward White, Tort Law in America: An Intellectual History 139–79 New York: Oxford University Press, 1985).Google Scholar