Langdell Upside-Down: James Coolidge Carter and the Anticlassical Jurisprudence of Anticodification

Abstract

In the decades following the Civil War, the American legal profession engaged in a heated debate about the wisdom of replacing the substantive common law with a written civil code. During the dispute's most intense period, in the 1880s, discussions of the benefits and shortcomings of codification appeared regularly in legal publications, as well as in general-interest newspapers and magazines. Professional organizations and state legislatures devoted countless hours to the question. Ultimately, the postbellum codification movement achieved little. By the 1890s, it was apparent that the American defenders of the common law had won the battle. The codification impulse lasted into the twentieth century, as reflected in the Uniform Code and Restatement projects. But there were no further major campaigns to abandon the common law wholesale in favor of a code. The late nineteenth-century codification debate generated a profusion of jurisprudential literature. Although modem scholars have not totally ignored this rich body of writing, they have devoted surprisingly little at tention to it. Strikingly, only a few articles have analyzed the portrait of the common law painted by Gilded Age jurists who fought codification. This neglect is surprising, for the common law jurisprudence of that period has engaged the attention of legal scholars for more than a century. The writings of those who resisted the common law's elimination are an obvious source of insight into the era's conception of the common law.