Post by Henry Smith
As Shyam mentioned in his post of May 8th, Christopher Columbus Langdell is widely taken to be the archformalist of the nineteenth century and Exhibit A of a deplorable “Classical Legal Thought” with its would-be deductive “science” of law. Recently, commentators such as Tony Sebok and Brian Tamanaha have argued that the formalist era was not as formalist is it appeared. Mostly the controversies over this revisionism swirl around realist-sounding pronouncements of courts and commentators of the common law in the late nineteenth and early twentieth centuries.
I’d like to throw something else into this mix: equity. In general, the common law looks a lot more formal and mechanistic when the possibility of tempering it through equity is left out the picture. This I would argue is nowhere more true than in the era of “Classical Legal Thought.” Indeed, one of the leading teachers of and advocates for moral and policy-oriented equity in that era was none other than – yes! – Christopher Columbus Langdell, Mr. Legal Science himself.
Langdell’s view of equity was anything but formalistic or rigid:
[T]he object of equity, in assuming jurisdiction over legal rights, is to promote justice by supplying defects in the remedies which the courts of law afford. . . [T]he jurisdiction is co-extensive with its object; that is, equity assumes jurisdiction over legal rights so far, and so far only, as justice can be thereby promoted.
C.C. Langdell, A Brief Survey of Equity Jurisdiction II, 1 Harv. L. Rev. 111, 116 (1887). For the Langdellian equity judge, the question of jurisdiction itself is infused with morality and policy, requiring in cases of preventive injunction to ask: “Will more perfect justice be done by preventing the tort than by leaving the plaintiff to his remedy at law? This, however, is a very complex question, depending partly upon the nature of the tort, and partly on other considerations.” (Id. at 121.) Langdell then goes on to discuss what we would call disproportionate hardship and extortion, and notes that there are limits to system in this area of law:
Questions of jurisdiction do not receive the same careful and constant attention which is bestowed upon questions of substantive right; and therefore, in dealing with such questions, the elements of haste, accident, caprice, the habits of lawyers, the leanings of individual judges, and the ever-changing temper of public opinion, have been factors of no inconsiderable importance.
Id. at 122. Nowhere does Langdell suggest that this is fatal or requiring a formalistic remedy. Indeed, he notes that ex post contextualism is inherent in many of the wrongs for which it intervenes:
But an act which is in itself rightful, and which is wrongful only because of some effect which it produces, or some consequence which follows from it, can seldom be proved to be wrongful by a priori reasoning, or otherwise than by actual experience; and even when it does sufficiently appear that a given act done in a given way will be wrongful, it does not follow that some part of it may not be rightfully done, or even that the entire act may not be done in such a way as to be rightful. For these and similar reasons a court of equity frequently finds it impossible to interfere in case of a nuisance until the act which constitutes the nuisance is either fully completed, or at least far advanced towards completion; and, in either of the latter events, it will often be found that the damage to the defendant which the interference of the court will cause will be out of all proportion to the damage to the plaintiff which it will prevent.
Id. at 125-26. This is not formalism; it is closer to anti-formalism.
Commentators promoting the idea of “Langellian Orthodoxy” have either ignored this equitable facet of Langdell’s thought, or have waved it away as a matter of mere remedy (for the latter, see, e.g., Thomas C. Grey, Langdell’s Orthodoxy, 45 U. Pitt. L. Rev. 1, 15 (1983)). Here’s what Langdell actually said on this score:
Of course, however, it must not be supposed that equity in modern times is simply a different system of remedies from those administered in courts of law; for there are many extensive doctrines in equity, and some whole branches of law, which are unknown to the common-law courts. Indeed, it may be said without impropriety that equity is a great legal system, which has grown up by the side of the common law, and which, while consistent with the latter, is in great measure independent of it. But what should be clearly understood is, that the whole of this growth has its root in the system of remedies adopted. It has often been said that it is the office of chancery to mitigate the rigor of the common law, to supply its deficiencies, to relieve against its technical rules, and to decide controversies according to equity and good conscience; but it is because of its system of remedies that it is enabled to do this.
C.C. Langdell, A Summary of Equity Pleading § 45, at 40-41 (2d ed., Cambridge: Charles W. Sever and Company 1883). After all a strict separation of substance and remedy would be overly formalistic, wouldn’t it? Overall, Langdell was no opponent of moralism in the law. That would be more like Oliver Wendell Holmes, Jr., who did so much to start the caricature of Langdell in the first place – and who tended to emphasize the common law at the expense of equity. But that’s a topic for another day.