by George W. Liebmann. New Brunswick: Transaction Publishers, 2006. 367pp. Cloth $59.95. ISBN: 9780765802811. Paper $29.95. ISBN: 9781412805605.
Reviewed by Kathleen S. Sullivan, Department of Political Science, Ohio University. Sullivak [at] ohio.edu.
George W. Liebmann attended law school at the University of Chicago in the early 1960s. This book is a tribute to his professors there. He was trained by a faculty of talented legal scholars of intellectual breadth and diversity. All shared an appreciation for practical knowledge rather than high theory, for bottom-up jurisprudence and judicial restraint. The book’s title reflects commitment to the methods of the common law retained by this group of scholars.
The book is structured by devoting a chapter to each of his five subjects. Each chapter offers an account of a professional career that included public service and major scholarly works of the twentieth century. Liebmann offers a collective portrait of these scholars as a model for a return to the common sense of the common law.
As Dean of the University of Chicago Law School in the early 1960s, Edward Levi secured grants for interdisciplinary projects in sociology, economics, and comparative law and recruited the faculty that would give the University of Chicago an identity distinct from eastern law schools. He began his career in the Antitrust Division of the Department of Justice. His work there influenced his role as a founder of the law and economics movement. He was driven not by economic orthodoxy but by his interest in the mutability of doctrine, a position summarized in INTRODUCTION TO LEGAL REASONING. As provost and president of the university during the period of student protest in the late 1960s, Levi exhibited the same moderate stance to ideology among students that he did among jurists. He later served for two years as President Ford’s Attorney General.
Harry Kalven, Jr., a popular professor of torts and taxation, was co-author with Hans Zeisel of THE AMERICAN JURY, the best known of the studies emerging from the University of Chicago Jury Project. In keeping with the common law tradition, Kalven suggested reforms that were based on his empirical findings rather than on his presuppositions. His work on race and the first amendment lent the attention to concrete issues that would be expected in the common law tradition.
Karl Llewellyn, a dynamic and stern class lecturer, was committed to the practice of judicial restraint. Whether writing about the common law method in THE CASE LAW SYSTEM IN AMERICA and THE COMMON LAW TRADITION or in authoring the Uniform Commercial Code, he operated on the premise that the law had to be [*55] adaptable to changing circumstances. He was a legal realist who never treated realism as a philosophy or unduly relied on social science research.
Philip Kurland, a founder of THE SUPREME COURT REVIEW, applied a pragmatist critique to the many changes in constitutional law doctrine of his day. Seeing constitutional law as a process in service to society, he lamented the judicial activism and the ideology that drove the notable developments in contemporary constitutional law doctrine.
Kenneth Culp Davis, author of a pathbreaking administrative law textbook, produced a New Deal-era comprehensive study of federal administrative agencies and Administrative Procedure Act of 1946. Davis’ career attended to administrative rules, which Liebmann sees as supplanted by contemporary appeal to rights. He was driven by concerns for separation of powers issues and common sense that gave way to greater judicial review and conceptions of welfare benefits as rights.
The book’s central concern lies in Liebmann’s understanding that this school of scholars has been lost to ideology and judicial activism. His law school professors resisted trends toward rights talk, litigation strategies, and legal philosophy. He likewise positions his own work outside of the ideological fray. His complaints about ideology in the academy are directed toward both the liberal “judicial activists” who have taught law students to pursue litigation strategies for social change rather than legislative reform, and the law and economics school that has maintained a “confining discipline rather than a liberating one” (p.3). The Chicago faculty in the early 1960s was a place of tolerance and pluralism because these scholars were not driven by ideological pursuits.
Whether Liebmann has escaped ideology, however, is another question. He presents a litany of what has gone wrong with the United States without the practical research into these topics that would be required by the very qualities he admires in the book’s subjects. The introduction and conclusion decry the rise of drug use and crime, the decline of the American family, increases in consumer debt, and destruction of the environment. Without empirical evidence of just what is wrong with these trends and the complex causes of these social phenomena, such a litany comes across as little more than an everyman’s complaint.
Liebmann may have avoided empirical discussion because of a distrust of social science. While some members of the Chicago faculty engaged in interdisciplinary research, he may have resisted incorporating research findings from other disciplines because his book’s subjects convey anxiety about the role of social science in the law. Throughout the book, social science emerges as just as doctrinaire as partisan ideology, leading its practitioners to be guided by presuppositions rather than follow the law. Thus, Liebmann does not incorporate much social science literature in a discussion of the impact of BROWN v. BOARD OF EDUCATION but, nevertheless, does draw conclusions about the role of BROWN in society: “BROWN gave rise to the destruction of public secondary education, once a [*56] major agency of social mobility, through the racial purging of urban teaching forces, the destruction of selective schools and ‘tracking’ in the face of egalitarian claims, and the flight to the suburbs first of the white middle class and then of the black middle class” (p.313). That such a definitive statement can be made about society at the conclusion of a book about legal scholars betrays the very problem of overreaching that the book’s subjects warned against.
The book remains useful to those interested in the time period or in any one of the book’s subjects. Liebmann has compiled information from personal papers, from the proceedings of professional associations and other archival material that offer a rich history of a particular time and place.
Kalven, Jr., Harry and Hans Zeisel. 1966. THE AMERICAN JURY. Chicago: University of Chicago Press.
Kurland, Philip (ed). 1960. THE SUPREME COURT REVIEW, 1960-. Chicago: University of Chicago Press.
Levi, Edward. 1948. INTRODUCTION TO LEGAL REASONING. Chicago: University of Chicago Press.
Llewellyn, Karl. 1989. THE CASE LAW SYSTEM IN AMERICA. New Haven: Yale University Press.
Llewellyn, Karl. 1960. THE COMMON LAW TRADITION—DECIDING APPEALS. Boston: Little, Brown.
BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).
© Copyright 2008 by the author, Kathleen S. Sullivan.