by Gerald Paul Moran. Durham: Carolina Academic Press, 2010. 334pp. Hardback. $45.00. ISBN: 9781594603983.
Reviewed by Brett W. Curry, Department of Political Science, Georgia Southern University. Email: bcurry [at] georgiasouthern.edu.
In JOHN CHIPMAN GRAY: THE HARVARD BRAHMIN OF PROPERTY LAW, Gerald Moran seeks to accomplish two related goals. First, although Moran notes that his book should not be described as a “definitive biography” of Gray (p.8), the work nevertheless chronicles the life of an important figure in American legal history. Second, and related, Moran attempts to demonstrate that Gray’s most notable contribution to the field of property law – his synthesis of the abstruse Rule Against Perpetuities (RAP) – is, in effect, a personification of his own character. In Moran’s words, “the focus of this study is on the symbiotic relationship of a man and his rule of law. They are inseparable” (p.17). The succeeding pages of Moran’s narrative set out to illustrate that proposition.
In advancing this thesis, Moran speaks to Gray’s position in Boston’s intellectual community, references aspects of his childhood, describes his relationship to his older half-brother (and, ultimately, U.S. Supreme Court Justice) Horace Gray, Jr., and touches on his experiences in war, the practice of law, and the academy. Although the book strays from its thesis at times and, much more noticeably, is the product of exceedingly amateurish editing, Moran’s fundamental point – that Gray’s conceptualization of the RAP is a direct reflection of his character – survives intact.
In both the preface and Chapter One, Moran establishes the contours of the book by providing an executive summary of both Gray’s experiences and the RAP. In those portions of the book, Moran sketches the RAP’s historical progression from the DUKE OF NORFOLK’S CASE (1682) through Gray’s scholarship (see Gray 1886), and up to the present day. In doing so, Moran suggests that the RAP is no longer a particularly useful component of modern property law: “the rule itself [has been] recognized by some as an anachronism of excessive complexity and transformed somewhat into an arbitrary rule of a time past” (p.6). Given the modern prevalence of trusts, that is undoubtedly true. However, when Moran further asserts that “[the] underlying purpose of this essay is to challenge the traditional academic support for the relatively unexplored automatic application of the RAP to modern trusts,” he goes a bit too far afield (p.18).
In the book’s introductory pages, Moran references the fact that the RAP, for Gray, “[had] a certain and inexorable correct answer for each problem” (p.10), and this theme is developed at considerably greater length in the chapters that follow. Chapter Two, titled [*254] “Gray’s Cultural Experience and the Formulation of the RAP,” begins to situate Gray within both his own family and Boston’s Brahmin community. Arguably the most significant episode in John Chipman Gray’s early years surrounded his father’s bankruptcy. That experience, according to Moran, cultivated in Gray both a sense of responsibility and an uncompromising view of the law. In effect, “[t]he severity of Gray’s moralistic approach to the law imitates the strict accountability that his father faced and accepted” (p.40).
Chapter Three, which discusses the influence of John Chipman Gray’s half-brother Horace on his legal views, is one of the more interesting portions of the book. These two men, described by Moran (p.61) as “identical twins in their approach to the common law,” venerated all things English. Both John Chipman and Horace Gray were extreme legalists, and Moran suggests that both John Chipman’s legal career and his approach to the law more generally were heavily influenced by the views of his elder half-brother. Although the two differed in age by more than a decade, the similarities in their legal thinking are indeed striking.
On the other hand, Chapter Four does considerably less to advance the book’s argument. Here, Moran briefly recapitulates Gray’s involvement in the American Civil War. While this experience was one that Gray and Oliver Wendell Holmes, Jr., shared, Moran concedes that the Civil War never directly influenced Gray’s legal thought (p.82). Given this material’s lack of centrality to Moran’s overarching premise, in my view it would have been a more effective strategy to have streamlined this narrative and incorporated it into other sections of the book.
In Chapter Five, Moran describes two major events in John Chipman Gray’s life – his marriage and his establishment, with John Ropes, of the elite Boston firm of Ropes & Gray. Much of this discussion is interesting, and Moran effectively conveys the firm’s centrality to the Boston community of that time. Chapter Six presents an extended discussion of Gray’s experience on the faculty of Harvard Law School. As Moran describes the personalities of the law school and the reforms pioneered there by Dean Christopher Columbus Langdell, one cannot help being struck by the fact that Gray’s biography provides a front row seat to the development of modern American legal education.
Chapter Seven tackles Gray’s relationship to the streams of legal thought permeating the academy in the early twentieth century. As Moran puts it, “The principal question is whether Gray can be. . . .considered an incipient or founding member of the so-called school of legal realism that became the center of controversy during the 1920s and 1930s” (pp.158-159). Despite Gray’s penchant for inflexible rules and insistence upon clear legal answers, Moran does identify instances in which Gray expressed views that were broadly consistent with legal realism (pp.175-176). Ultimately, Moran concludes that Gray “never committed consistently to a particularly philosophical approach,” and that he was “a rare, perhaps contradictory, mixture of pragmatist, practitioner, and academic dogmatist of [*255] the first order” (p.171). At his core, however, Gray was “a quintessential representative of the school of classical formalism” (p.178).
Chapters 8-11 move a bit further afield, discussing a host of topics regarding both property law and scholarly criticisms of Gray’s work. In Chapter Eight, Moran discusses Gray’s RESTRAINTS ON THE ALIENATION OF PROPERTY (1883), including the “Spendthrift Doctrine.” Chapter Nine considers arguments from several of Gray’s critics, including Sir Howard Elphinstone, Albert Kales, and W. Barton Leach. Chapter Ten concerns the “Americanization” of the Rule Against Perpetuities. Here, Moran argues that the rigidity of Gray’s original doctrine has, in some sense, become its undoing. In referencing several legislative efforts to amend the rule in the twentieth century, Moran underscores his belief that the rule remains too dogmatic to maintain relevant to contemporary American law. In Chapter Eleven, Moran continues this discussion of the RAP’s contemporary significance and simultaneously laments the fact that the socioeconomic consequences of maintaining the RAP remain largely unexamined by scholars (p.269).
Although Chapters 8-11 will likely appeal to those who operate in the field of property law, I felt they were largely divorced from the book’s central thesis: the interrelationship of Gray the man to his RAP. Others will certainly disagree with that assessment but, in my view, these chapters, while informative, failed to advance the book’s broader argument and maintain tight coherence in that narrative.
Ultimately, Moran’s biographical essay succeeds in capturing the relationship between John Chipman Gray’s life experiences and his most notable contribution to property law – the Rule Against Perpetuities. It also tackles the question of Gray’s underlying legal philosophy. Of course, the book is far from perfect. As previously noted, the book’s editing leaves much to be desired – repeated block quotations appear, proper names are misspelled, and additional typographical mistakes abound. Additionally, some of the substantive discussions of the RAP, particularly in the book’s latter chapters, are a bit removed from the work’s central thesis. That said, individuals seeking either a comprehensive discussion of the RAP or an understanding of John Chipman Gray will benefit from this work.
Gray, John Chipman. 1883. RESTRAINTS ON THE ALIENATION OF PROPERTY. Boston: Boston Book Company.
Gray, John Chipman. 1886. THE RULE AGAINST PERPETUITIES. Boston: Little, Brown, and Company.
DUKE OF NORFOLK’S CASE. (1682) 3 Ch Cas 1, 22 ER 931.
© Copyright 2011 by the author, Brett W. Curry.