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The Heyday of Legal Realism, 1928-1954

William O. Douglas
Sterling Professor of Law, 1928-36

William Orville Douglas (1898-1980) had a short but remarkably productive career as an academic. Lured away from the University of Chicago in 1928, Douglas was at Yale for only five years before embarking on his long career in the public sector. In 1934 he started commuting between New Haven and Washington, D.C. to direct a study on creditor protective committees in corporate insolvency reorganizations for the U.S. Securities and Exchange Commission. Douglas took a formal leave of absence in 1936 when he became a commissioner of the agency, and resigned in 1937 when he was appointed chairman of the Commission. Click here for Douglas' view of Wall Street's perception of his chairmanship. In 1939, he was appointed to the U.S. Supreme Court, where he served until he retired in 1975.

During his tenure at Yale, Justice Douglas became one of the most prominent corporate law scholars of his generation, writing foundational articles on business tort liability, corporate reorganizations, and the Securities Act of 1933. Associated with the Legal Realist movement, Justice Douglas was concerned with the real-life effects of formal legal doctrines. To this end, he carried out a massive study of corporate bankruptcies in New York. Like many of the Realists, he was also an innovator in legal education. He authored casebooks that radically reorganized how business law was to be taught, and was involved in the creation of a joint law and business program between the Law School and the Harvard Business School, the first of its kind.  Click here for YLS Bulletin announcing program. Justice Douglas’ casebooks were pioneering because they focused on what businesses did – the allocation of resources, control, and losses – in contrast to the traditional casebook organized around legal forms (agency, partnerships, and corporations). Although the books were not commercial successes, the core insight of his approach is the basis for the study of business law today.

A professorship was established in his honor at the Law School in 1989.

REFERENCES:

Robert W. Gordon, “Professors and Policymakers,” in Anthony T. Kronman, ed., History of the Yale Law School (2004).

Laura Kalman, Legal Realism at Yale l927-l960 (l986).

Walton H. Hamilton
Southmayd Professor of Law, 1928-48

Walton Hale Hamilton (1881-1958) was one of the intellectual leaders of the Legal Realist movement at Yale. An economist but not a lawyer, Hamilton applied the insights of institutional economics to legal contexts, producing many classic critiques of legal formalism. In works such as “The Ancient Maxim Caveat Emptor,” 40 Yale L. J. 1133 (1931), “Affectation with a Public Interest,” 39 Yale L. J.  1089 (1930), and “The Path of Due Process of Law,” 48 Ethics 269 (1938), he showed how legal concepts that had evolved in specific historical and social contexts could lead to surprising and undesirable outcomes when removed from context and generalized into universal legal principles. Hamilton also undertook industry studies to show how wages and prices were not set by market forces as understood by neoclassical economists but rather depended on social and historical contexts, that resulted in noncompetitive wages and prices.

At the Law School, Hamilton taught courses in trade regulation, torts, and public control of business, among others, and co-authored many books and articles with most of his colleagues. His teaching materials on torts, assembled with Dean Harry Shulman, raised economic questions that were retained in what became the Shulman and James torts casebook, which introduced law students to the possibility of economic analysis, including a first-year law student, Guido Calabresi, who authored the pathbreaking work in the field, “Some Thoughts on Risk Distribution and the Law of Torts,” 70 Yale L. J. 499 (1961).

In the 1930s Hamilton was a frequent advisor on New Deal economic policy. He eventually left Yale to become a full time deputy to Thurman Arnold at the new antitrust division of the Justice Department and thereafter, to join Arnold’s newly created Washington, D.C. law firm, Arnold, Fortas & Porter.

At the Law School, a professorship was established in his honor in 1965.

REFERENCES:

Robert W. Gordon, “Professors and Policymakers,” in Anthony T. Kronman, ed., History of the Yale Law School (2004).

W. Underhill Moore
Sterling Professor of Law, 1929-47

William Underhill Moore (1879-1949) came to Yale from Columbia in 1929.  An expert in commercial bank credit and business organizations, Moore was one of the intellectual leaders of the Legal Realist movement at Yale and a pioneer in the use of social scientific methods in legal research.

Like his Yale contemporary Karl Llewellyn, Moore maintained that judges often applied non-legal norms—especially norms of commercial behavior—in deciding cases. Of the Realists, Moore was the most dedicated to the ideal of scientific objectivity. In a famous 1929 study, “An Institutional Approach to the Law of Commercial Banking,” 38 Yale L. J. 703 (1929), Moore (with Theodore S. Hope, Jr.) attempted to explain and predict banking law decisions that did not appear to derive from existing legal rules by determining the extent to which the facts of the case deviated from normal banking practice. The study examined banks’ then common use of what were considered to be questionable debiting practices and found that courts upheld a bank’s practice when it was in conformance with the practice of other banks in the area. In addition, in a series of articles with Gilbert Sussman, Moore undertook an empirical survey of actual banking practices in discounting notes. Integrating his research and teaching, Moore taught commercial law by the “institutional method” that informed his scholarship; students named the course “The Sex Life of a Check.”

Later scholars have criticized Moore’s empirical studies for their primitive methodology, but his core notion about the importance of empiricism in legal research has largely become conventional wisdom. In a tribute to Moore, Justice Douglas, who was his student and research assistant, recounted Moore’s own insight into his research project: “The so-called legal lights ridicule my project. They do not understand it and it would be futile to try to make them understand. I am not writing for them. I am writing for the small select group who are groping for ways of applying the scientific method to the social sciences. Perhaps the present effort will fail. But some day it may succeed. A hundred or five hundred years from now a kindred soul may find in my crude researches some clue to the solution. He is the audience for whom I write.”

REFERENCES:

William O. Douglas, “Underhill Moore,” 59 Yale L. J. 187 (1950).

Laura Kalman, Legal Realism at Yale l927-l960 (l986).

Norman Silber & Geoffrey Miller, “Toward 'Neutral Principles' in the Law: Selections from the Oral History of Herbert Wechsler,” 93 Colum. L. Rev. 854 (1993).

John Henry Schlegel, “American Legal Realism and Empirical Social Science: The Singular Case of Underhill Moore,” 29 Buffalo L. Rev. 195 (1980).

Robert Stevens, Law School: Legal Education in America from the 1850s to 1980s (1983).

2 Who Was Who in America 381 (1963).

Harry A. Shulman
Sterling Professor of Law, 1929-54

Harry Shulman (1903-55) came to Yale in 1929. He was appointed the dean of the Law School in 1954, but died only a year later. Although he contributed to torts and administrative law scholarship, his best-known work involved labor contracts.

Shulman has been described as “one of the most influential people in the history of American Labor arbitration.” He served on the National War Labor Board during World War II, and later served for many years as umpire of the labor agreement between Ford Motor Company and the United Automobile Workers. His 1949 casebook, Cases on Labor Relations, on which he collaborated with an economist, was the first book on arbitration of collective bargaining disputes and, in the functional approach of the Legal Realist tradition, was organized by the types of disputes that might arise in the life of a labor contract.

Dean Shulman’s 1955 Oliver Wendell Holmes Lecture, “Reason, Contract, and Law in Labor Relations,” 68 Harv. L. Rev. 999, remains one of the most frequently-cited law review articles.  His vision of the limited and restrained arbitrator has remained influential to this day.

At the Law School, a scholarship fund was established in his honor in 1955, a research fund in 1957, and a library fund in 1963.

REFERENCES:

Laura J. Cooper, “Harry Shulman: Deciding Women's Grievances in Wartime,” in Gladys W. Gruenberg, ed., Arbitration 1994 Controversy and Continuity: Proceedings of the Forty-Seventh Annual Meeting, National Academy of Arbitrators 153 (1995).

Laura Kalman, Legal Realism at Yale l927-l960 (l986).

Eugene V. Rostow, "Dean Harry Shulman," 64 Yale L. J. 802 (1955).

3 Who Was Who in America 784 (1963).

Thurman W. Arnold
Lafayette S. Foster Professor of Law, 1930-31, 1931-38

Thurman Wesley Arnold (1891-1969) was one of the most prominent Legal Realists at Yale in the 1930s. Arnold was recruited to the Law School faculty in 1930, and remained at the school until 1938, when he was appointed Assistant Attorney General in charge of the Antitrust Division of the Department of Justice. Prior to assuming that position he had worked part time as a consultant on several projects for the New Deal administration.

During his years on the faculty, Arnold authored numerous law review articles and became one of the most prominent Legal Realists through publication of two best-selling books, written for a lay audience, The Symbols of Government (1935) and The Folklore of Capitalism (1937). In them, Arnold contended that much of legal and economic rhetoric consisted of symbolism and ritual—less designed to describe reality than to shape and mask reality. For example, Arnold described the antitrust laws as a “mythology” based on an ideal of ruthless, individual competition that had no bearing in the practical reality of large corporations, with the result that the laws actually “promote[d] the growth of great industrial organizations by deflecting the attack on them into purely moral and ceremonial channels.” The Folklore of Capitalism at 212.

As a pioneering leader of the Antitrust Division, however, Arnold was perhaps the most aggressive trust-buster in the division’s history, enlarging the staff and budget, bringing over 100 cases and starting over 200 investigations, including inquiries into industry-wide pricing policies, guided by Walton Hamilton. He restructured the division to emphasize an anti-monopoly strategy with “consumer welfare” (competitive prices) as the goal, rather than a reduction in the concentration of power per se. That approach was consistent with the view expressed in his writings, that large organizations were a “practical necessity.”

Arnold served in the Antitrust Division until he was appointed to the U.S. Court of Appeals for the D.C. Circuit in 1943. In 1945, he left the bench and founded the Washington, D.C. law firm that still bears his name, Arnold & Porter. From Washington, he often commuted to Yale to continue to teach antitrust law. It was a true labor of love. Arnold resigned from the Law School to pursue a career in public service, but the termination of his employment was not quite voluntary. As he put it, “The Yale Corporation inflicted an injury on the cause of legal education from which it has not recovered. But one can hardly blame them. They were so obsessed with the narrow idea that a Yale professor should spend a little time at Yale that they were blind to the broader consequences of what they were doing. I felt sad and dispirited at the news. I had lost my tenure at Yale, a place I loved, and at which I had spent seven of the happiest years of my life. The chances of ever getting back did not seem to be particularly bright.” Fair Fights and Foul 136 (1965).

At the Law School, a prize for the best student argument in the Moot Court competition was established in his honor in 1954.

REFERENCES:

Robert W. Gordon, “Professors and Policymakers,” in Anthony T. Kronman, ed., History of the Yale Law School (2004).


Friedrich Kessler

Sterling Professor of Law, 1935-39, 1947-70

Friedrich Kessler (1901-1998) fled Nazi Germany in 1934 and came to Yale, where he remained until 1970 except for a stint at the University of Chicago Law School from 1938-47. Kessler was a self-described Legal Realist, and one of the world’s leading contracts scholars. 

Kessler described the Legal Realist’s task as “constantly testing out the desirability, efficiency and fairness of inherited legal rules and institutions in terms of the present needs of society.” “Natural Law, Justice and Democracy—Some Reflections on Three Types of Thinking About Law and Justice,” 19 Tul. L. Rev. 32, 52 (1944). Much of Kessler’s most important work consisted of “testing out” the doctrine of “freedom of contract.” 

In his celebrated article, “Contracts of Adhesion—Some Thoughts About Freedom of Contract,” 43 Colum. L. Rev. 629 (1943), Kessler maintained that Eighteenth century concepts of freedom of contract were inadequate to the realities of modern industrial economies. Through standardized contracts, he contended, parties with stronger bargaining power – in particular, large corporations – could impose their will on individuals, and courts were reluctant to give up the language of freedom of contract, even when they decided in favor of the weaker party, creating doctrinal confusion, instead of recognizing the modern contracting context and modifying the concept of freedom of contract to fit the contracting circumstances. As he put it, “freedom of contract [had become] a one-sided privilege,” exercised by powerful large-scale corporations, such that the society was experiencing a “return back from contract to status [that] was greatly facilitated by the fact that the belief in freedom of contract has remained one of the firmest axioms in the whole fabric of the social philosophy of our culture.” “Contracts of Adhesion,” at 640-41.

Some commentators have ascribed Kessler’s innovative approach to contract law in relation to the  modern industrial and capitalist state to his German roots, in Max Weber’s concern over the impact on the individual of the rationalization of the modern bureaucratic state, and Kessler's own concern over untamed economic power that in early modern Germany ended in the nightmare of fascism. Along with his many articles, his casebook Contracts: Cases & Materials (1953 with Malcolm Sharp, later editions with Grant Gilmore and Anthony Kronman) helped to shape the modern debate on how courts should interpret and enforce promises, form contracts, and contracts of adhesion.

REFERENCES:

Christian Joerges, “Demos vs. Ethnos in Private Law: Friedrich Kessler and his German Heritage,” 104 Yale L. J.  2137 (1995).

Anthony T. Kronman, “My Senior Partner,” 104 Yale L. J. 2129 (1995).

John K. McNulty, “A Student’s Tribute to Fritz Kessler,” 104 Yale L. J. 2133 (1995).

George L. Priest, “Contracts Then and Now: An Appreciation of Friedrich Kessler,” 104 Yale L. J. 2145 (1995).

Randolph E. Paul
Visiting Sterling Lecturer, 1937-43

Randolph Paul (1890-1956) was one of the architects of the federal income tax.  An advocate of the expansion of federal taxes during World War II, he served first as an informal advisor to the Treasury Department on tax issues in the late 1930s and early 1940s. He assumed a full time position after the attack on Pearl Harbor, becoming General Counsel to the Treasury in August 1942. During the years when he was lecturing at the Law School, in addition to engaging in private tax practice, serving as a director of the Federal Reserve Bank in New York and providing advice to the Treasury Department, he published a series of influential works on federal taxation, including Studies in Federal Taxation (1937, 1938, 1940), and Federal Estate and Gift Taxation (1942). As Treasury General Counsel, he advocated a broad income tax, both as a revenue producer to finance the war effort, and as a tool for regulating the economy. He contended that an income tax expanded to include the middle class was more equitable, as well as more reliable as a revenue stream to meet war needs, than a national sales tax, an alternative being promoted by members of Congress, among others, at the time.

In 1944, Paul left the Treasury Department to found the New York law firm Paul, Weiss, Rifkind, Wharton & Garrison. Although Paul did not resume his association with the Law School, he continued to publish scholarly works on tax issues, including Taxation for Prosperity (1947), in which he argued in favor of progressive taxation, and Taxation in the United States (1954), a history of federal taxation, in which he further developed his advocacy of a broad progressive income tax and its superiority to alternative taxes. He died while testifying at a congressional hearing on then President Eisenhower’s tax and budget policies, which he considered inequitable. In an obituary the following day, the Washington Post praised Paul, stating that “He saw fiscal issues in the large context of the national economy, and with the understanding of an economist and social planner."

REFERENCES:

Photograph courtesy of Tax History Project.

Historical Perspective—Profiles in Tax History: Randolph E. Paul,” (Oct. 6, 2004).

“Randolph E. Paul, Lawyer and Tax Expert, Elected to the Board of Federal Reserve Here,” N.Y. Times, June 13, 1941, at 29.

“Randolph E. Paul Dies at Hearing,” N.Y. Times, Feb. 7, 1956, at 19.

“Randolph Paul,” Wash. Post (op.ed.), Feb. 7, 1956, at 22.

James William Moore
Sterling Professor of Law, 1938-74

J. W. Moore (1905-1994) received a doctorate from the Law School (1935) and joined the faculty in 1938 after two years at the University of Chicago Law School.  Moore was the leading bankruptcy law scholar of his generation. He edited the authoritative treatise in the field for decades, the multi-volume Collier on Bankruptcy (orig. pub.1898), beginning in 1938 when he assumed the position of the work’s Editor-in-chief at the time of the enactment of the Chandler Act, which was a major rehauling of the bankruptcy laws.

Moore’s other publications in the field include Moore’s Bankruptcy Manual (1939) and the casebook, Debtors’ and Creditors’ Rights: Cases and Materials, written with Vern Countryman, which was first published in 1947 and went through four editions by 1975.  The casebook took a novel approach to the subject, by providing the evolution of both the nonbankruptcy and bankruptcy systems of creditors’ remedies, thereby facilitating a comparative evaluation of their merits.  In addition to his scholarly work on bankruptcy, Moore served as counsel for the bankruptcy trustee of the New Haven Railroad from its entry into reorganization in 1961 through its exit in 1980.

Moore authored the leading treatise not only on bankruptcy law, but also on civil procedure, an unusual accomplishment.  Along with Dean Charles E. Clark, Moore was one of the lead drafters of the new “trans-substantive” Federal Rules of Civil Procedure in the 1930s.  He began his work on the rules, for which Dean Clark was the reporter, while a graduate student at Yale.  When he returned to the faculty, the rules had been promulgated and, paralleling his assumption of the Collier’s treatise, Moore wrote extensive commentaries on the new rules, culminating in the definitive guide to the rules, the 34-volume Moore’s Federal Practice, which he personally updated well into the 1980s.

Professor Moore was interviewed in 1982, in a series of recorded interviews of faculty undertaken by the Law School.  Click here for the video
 
REFERENCES:

Interview with Prof. James W. Moore, June 9, 1982, conducted by Prof. Geoffrey C. Hazard (videorecording).

Laura Kalman, Legal Realism at Yale l927-l960 ( l986).

Wolfgang Saxon, “Obituary: James W. Moore, 89, Legal Scholar and Teacher,” N.Y. Times (Nov. 1, 1994).

Eugene Victor Rostow
Sterling Professor of Law, 1938-84

Eugene V. Rostow (1913-2002) graduated from Yale College in 1933 and the Law School in 1937, and returned as a professor in 1938. He was the dean of the Law School from 1955-65. 

Dean Rostow is perhaps best remembered for his foreign affairs work. He served as an assistant general counsel in the Lend-Lease Administration during World War II, and in 1945 wrote an important article criticizing the internment of Japanese-Americans and calling for reparations, “The Japanese American Cases--A Disaster,” 54 Yale L. J. 489 (1945). Rostow later served as Under Secretary of State for Political Affairs from 1966-69, where he helped to draft U.N. Security Council Resolution 242, which has since provided the basic framework for Arab-Israeli negotiations. He also served as director of the U.S. Arms Control and Disarmament Agency from 1981-83. He published a number of books on international law throughout his career, such as Law, Power and the Pursuit of Peace (1968) and Toward Managed Peace: The National Security Interests of the United States, 1759 to the Present (1993), and the American Bar Association’s standing committee on law and national security presented him with an award for his “extraordinary contributions.”

At the beginning of his career, however, Dean Rostow specialized in the business law area, teaching many business law courses at Yale, including a seminar for graduate students in economics as well as law students, on the public regulation of industry. That seminar introduced macroeconomics - which Rostow had studied at Cambridge University before entering law school -  into antitrust law, and focused on the use of public policy to regulate businesses so as to smooth out the business cycle.   Rostow also published a number of influential books on business law-related topics, including A National Policy for the Oil Industry (1948) and Planning for Freedom (1959). In these books he expounded a vision of market competition channeled through efficiency-increasing public regulation. His goal, as he put it in Planning for Freedom, was to “fortify and not weaken, the health, vigor, and autonomy of the free institutions of labor…[so as to] minimize the risk of Socialism, Fascism, or other forms of collectivist domination by the state.”

Dean Rostow’s greatest contribution to business law scholarship at Yale, was, however, in the doubling of the faculty size during his deanship, through which he recruited to Yale in the business law area, Merton Bernstein, Joseph Bishop, Robert Bork, Ward Bowman, Marvin Chirelstein, Francis Coker, Bayless Manning, Ellen Peters, John Simon, Harry Wellington, and Ralph Winter. There was also considerable curricular innovation during his deanship, including the creation of the first year small groups. Rostow was one of the great deans of the Law School and had a lasting influence on it.  As Dean Anthony Kronman put it in a tribute to Dean Rostow: “[T]his is the school that Gene built, and though it is the work of many hands, of no one can it be said, as fully and truly as it can of Gene, that he gave the place the shape it has, and defined its special spirit.”

Dean Rostow was interviewed in 1984, in a series of recorded interviews of faculty undertaken by the Law School.  Click here for the video

REFERENCES:

Guido Calabresi, “The Generosity of a Dean,” 113 Yale L. J. 5 (2003).

Interview with Prof. Eugene V. Rostow, June 7,1984, conducted by Prof. Abraham S. Goldstein (videorecording).

Anthony T. Kronman, “In Memory of Gene Rostow,” 113 Yale L. J. 9 (2003). 

Martin Weil, “Eugene Rostow Dies; Law Dean Advised Presidents on Arms,” Wash. Post, Nov. 26, 2002, at B06.

Yale University online Biography Resource Center.

Addison Mueller
Professor of Law, 1945-56

Addison Mueller (1908-1981) graduated first in his class at the Law School in 1943, and returned as a member of the faculty in 1945, teaching in the contract law area.

In 1951, Mueller published Contracts in Context (1951), an innovative casebook that presented the basic contracts course through a series of fact-intensive scenarios and included materials on business practices and documents. As the title suggests, the book reflected Mueller’s belief that contract law needed to be understood holistically, and could not be fully represented by a set of simple, abstract principles. Like the earlier Legal Realists, he organized the book functionally, around the problems sequentially encountered in a business transaction (building an apartment house). The book became a major influence on how contract law was taught.

Mueller left Yale in 1956, after the University denied tenure to Vern Countryman. He had proposed that the entire Law School faculty resign in protest, but he was the only one to do so. He joined the faculty of UCLA in 1958, where he spent the remainder of his academic career.

REFERENCES:

Addison Mueller, Law: Los Angeles, In Memoriam”.

Laura Kalman, Legal Realism at Yale l927-l960 ( l986).

Boris I. Bittker
Sterling Professor of Law, 1946-83

Boris Bittker (1916-2005), YLS ’41, was a professor at the Law School for nearly six decades. He was the dominant tax scholar of his era, and a pioneer in turning the study of federal tax law into a serious academic discipline. Bittker’s early articles can be characterized as treating “technical” issues in the tax code, but the scope of his scholarship soon expanded to the major questions of tax policy, and his articles continue to shape academic discussion of tax law.

Bittker published several innovative casebooks, as well as treatises, updated versions of which are still in use today. Bittker’s Estate and Gift Taxation (1951), for instance, was one of the first casebooks on the subject and engaged the critical tax policy issue of wealth redistribution. In addition, his Federal Income Taxation (1954) was the first “completely new” text published after the comprehensive revision of the Internal Revenue Code in 1954, and like his earlier casebook, explicitly considered policy issues in contrast to most casebooks of the time.

One of the recurring themes of Bittker’s scholarship was the difficulty—and sometimes futility—of applying over-arching principles to the complex and multi-faceted tax code. For example, in “A ‘Comprehensive Tax Base’ as a Goal of Income Tax Reform,” 80 Harv. L. Rev. 925 (1967), Bittker maintained that it was impossible to establish a neutral “tax baseline” against which loopholes, preferences, and “tax expenditures” could be measured.

Bittker’s prolific scholarly output covered not only all of income and estate taxation, including the taxation of business enterprises, but also a variety of nontax subjects, including civil rights and constitutional law. In 1972 (reissued in 2003), he published The Case for Black Reparations, an important work in which he sought to establish the feasibility of providing reparations to African-Americans for the horrors of slavery. He retired from teaching in 1983, but continued to come in to his office at the Law School every day until close to his death.

Professor Bittker was interviewed in 1982, in a series of recorded interviews of faculty undertaken by the Law School.  Click here for the video.

REFERENCES:

Josh Duboff, “Law Scholar Bittker dies at age 88,” Yale Daily News, Sept. 15, 2005.

Interview with Prof. Boris I. Bittker, June 9, 1982, conducted by Prof. Elias Clark (videorecording)

Laura Kalman, Legal Realism at Yale l927-l960 (l986).

YLS Mourns Death of Boris I. Bittker,” @YLS-News (Sept. 12, 2005).

Grant Gilmore
Sterling Professor of Law, 1946-65, 1973-78

Grant Gilmore (1910-1982) received his A.B. from Yale College in1931, a Ph.D. in French Literature from Yale in 1936, and his LL.B. from the Law School in 1942. One of the preeminent contract scholars of his generation, Gilmore, who worked out of the Legal Realist tradition, was to remain at Yale—except for a seven-year sojourn at Chicago—until his retirement.

Early in his career, Gilmore was hired by Karl Llewellyn (then at Columbia) to assist in the drafting of Article 9 of the Uniform Commercial Code. Much of Gilmore’s early writings were dedicated to explaining and analyzing the resulting product. In 1965, Gilmore published his two-volume Security Interests in Personal Property, which won the Ames prize in 1966 (awarded by the Harvard Law School faculty for the  most distinguished work of legal scholarship over a five-year period) and the Coif Award in 1967 (awarded, then triennially, by the American Association of Law Schools for the best book of legal scholarship). Gilmore’s best-known work, however, was The Death of Contract (1974), in which he presented a concise history of Anglo-American contract law, and contended that contract law was being swallowed up by tort as a “reliance” theory of contract gradually supplanted the “bargain” theory.

A central theme in his work throughout his career, equally present in an important early paper on good faith purchases, as in his book published over twenty years later, The Ages of American Law (1977), was the illusion of certainty, or as he put it, “[t]he only legal certainty is the certainty of legal change.” "The Commercial Doctrine of Good Faith Purchase,” 63 Yale L. J. 1057, 1121 (1954). Indeed, paralleling that theme, his own views changed dramatically over time, shifting away from his earlier advocacy of codification, in “Formalism and the Law of Negotiable Instruments,” 13 Creighton L. Rev. 441, 461 (1979),  and calling his earlier work on the law of good faith purchases largely “mistaken,” in “The Good Faith Purchase Idea and the Uniform Commercial Code: Confessions of a Repentant Draftsman,” 15 Ga. L. Rev. 605, 605 (1981).

Gilmore’s skepticism regarding legal rules and preoccupation with change also were reflected in his view of the essence of the Law School. As described by Dean Guido Calabresi, “Gilmore once said that the Golden Age of the Yale Law School always seemed to lie in its immediate past, in the time of those who had just gone, while another Golden Age could be achieved in its immediate future if only a few things were done, if only a few things worked out. With a gentle sarcasm, born of intense loyalty, he would contrast this state of affairs with that which obtained at other great law schools whose Golden Age seemed always to be present, and whose past achievements in retrospect seemed dull. He liked the Yale Law School that way.”

REFERENCES:

Guido Calabresi, “Grant Gilmore and the Golden Age,” 92 Yale L. J. 1 (1982).

Dennis J. Hutchinson, “Remembering Grant Gilmore,” 6 Green Bag 2d 67 (Autumn 2002).

“Memorial for Grant Gilmore,” N.Y. Times, Sept. 29, 1982, at D26.

Ellen A. Peters, “Grant Gilmore and the Illusion of Certainty,” 92 Yale L. J. 8 (1982).

8 Who Was Who in America 154 (1985).

Vern Countryman
Associate Professor of Law, 1948-55

Vern Countryman (1917-99) was a graduate student at the Law School in 1947-48 before joining the faculty as an assistant professor.  Countryman was a prominent bankruptcy scholar, following in the footsteps of Wesley Sturges and his mentor, William O. Douglas, for whom he clerked. His casebook with J. William Moore, Debtors’ and Creditors’ Rights: Cases and Materials, which was first published in 1947 and went through four editions by 1975, took a novel approach to the subject, by providing the evolution of both the nonbankruptcy and bankruptcy systems of creditors’ remedies, thereby facilitating a comparative evaluation of their merits.

While at Yale, Countryman wrote a number of articles on creditor and debtor rights and one book, Un-American Activities in the State of Washington: The Work of the Canwell Committee (1951), which was an attack on that state's version of the House Un-American Affairs committee; the state committee purged the University of Washington faculty of communist sympathizers. Countryman was denied tenure by the University, despite the Law School faculty’s positive recommendation, because of that book, which Yale’s President, A. Whitney Griswold, was said to have considered of insufficient academic quality to merit tenure. Many faculty members, however, ascribed the decision to Countryman’s politics and the tenure denial was therefore a cause célèbre. He was offered an extension of his contract to improve his scholarly output for reconsideration, but he resigned instead. After a stint in private practice followed by the deanship at the University of New Mexico Law School, Countryman joined the Harvard Law School faculty in 1964.
 
REFERENCES:

Laura Kalman, Legal Realism at Yale l927-l960 ( l986).

David A. Skeel, Jr., “Vern Countryman and the Path of Progressive (and Populist) Bankruptcy Scholarship,” 113 Harv. L. Rev. 1075 (2000).


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Acknowledgments