Robert Hale and the Economy of Legal Force
| Published date | 01 July 1990 |
| DOI | http://doi.org/10.1111/j.1468-2230.1990.tb02826.x |
| Author | Neil Duxbury |
| Date | 01 July 1990 |
THE
MODERN
LAW
REVIEW
~ ~~ ~~ ~ ~~
Volume
53
July
1990
No.
4
Robert Hale and the Economy
of
Legal Force
Neil
Duxbury”
British legal scholarship of this century lacks a properly comparable counterpart to the
tradition of American radical legal thought which has evolved throughout the same period.
In this country, critical legal scholarship is a distinctly modem phenomenon, the supplement
and successor to socio-legal studies and Marxist jurisprudence. It is a modem trend which
has grown out of an ever
so
slightly less modern trend. In the United States, in contrast,
critical legal scholarship is in some ways little more than a distinctly modem name, ascribed
rather ambiguously to a collection of people somehow connected by the things that they
write, the works that they cite and the conferences that they attend. Certainly there are
discernible criteria which demarcate American critical legal scholarship from all that came
before it
-
indeed many of the critical legal texts that are cited in this article are a testament
to this fact
-
but the essential component of ‘critique’ at the heart of critical legal scholarship
is not at all new. The critical tradition in American legal scholarship is characterised by
certain themes
-
such as instrumentalism, formalism and the fallacy of the public/private
dichotomy
-
which have proved to be foundational to the evolution of modem
US
legal
doctrine.’ Many of these themes were particularly important to lawyers
of
the New Deal
era2 and the American legal realists in the
1920s
and
1930s;
and it is from this period,
I believe, that many of the themes central to modem critical legal scholarship are derived.
Such a thesis may seem to some to be little more than a commonplace. But it entails two
complex ramifications. First of all,
it
is premised on the assumptions that we can identify
what ‘realism’ was about, who ‘the realists’ were, what united them under that particular
banner, and from where
(so
to speak) they were coming. Secondly, it requires that we
question the motives and assumptions of the modern reader looking back at realism: when
we read realism, from where, precisely, are we ~oming?~
*Lecturer in Law, University of Manchester. For comments, criticisms, helpful correspondence and advice
regarding earlier drafts of this article,
I
should like to thank Roger Brownsword, Hugh Collins, Barbara Fried,
Walter Gellhorn, Lieselotte Gillespie, John Hazard, Morton Honvitz, Willard Hurst, Duncan Kennedy, Matt
Kramer, Neil MacCormick, Anthony
Ogus,
Joseph
Raz,
Warren Samuels, Jack Schlegel and David Sugarman.
Hale’s unpublished papers, to which
I
refer, are stored in twenty-six boxes at the Rare
Book
and Manuscript
Library, Butler Library, Columbia University. The first seven boxes contain correspondence, manuscripts,
teaching materials, conference and lecture
notes,
and review notices; and they are catalogued, listed and contained
in
95
folders. The remaining boxes contain mimeographs of unpublished works used in Hale’s courses.
In
referring to these papers
I
cite the number of the folder, then the number
of
the item (if any), and finally
the page number (if any).
See Morton J. Horwitz,
The Transformation of American Law,
1760-1840
(Cambridge, Mass: Harvard
UP,
1977).
See
G.
Edward White, ‘Recapturing New Deal Lawyers’
(1988)
102
Ham
L
Rev
489-521.
For discussion,
see
Edward A. Purcell Jr, Review of W. Twining,
Karl
Uewellyn
and
the Realist Movement
(1975) 19
American
Journal
of
Legal
History
240-246
at
240.
During the past decade or
so
a number
of path-breaking studies of realism at Yale in the
1930s
have been published, most notably: John Henry
1
2
3
The
Modern Law Review
53:4
July
1990 0026-7961
42
1
The Modern Law Review
[Vol.
53
The nature of American legal realism and its reception by modem critical legal scholarship
is a theme to which I shall return, for the purpose of this article is to offer an historical
study of Robert Lee Hale, a professor
of
law and economics at the University of Columbia
from 1919 through to the
mid-1950s
who is commonly described as a realist and who,
throughout his academic career, presented and refined a theory of legal and economic
coercion which has, during the past decade or
so,
become one of the cornerstones of
American critical legal scholarship. Not that Hale would have carried the titles
of
‘realist’
or ‘critical legal mentor’ at all comfortably or willingly. His work simply epitomises certain
of
the fundamental themes of the American critical legal tradition.
Who Was
Robert
Hale?4
Robert Hale was born in Albany, New York, in 1884. He attended the Albany Academy
from 1890, graduating in 1901. In 1901-1902
he
studied at the Neues Gymnasium,
Braunschweig
,
Germany and in September 1902 he entered Harvard College, graduating
BA
cum laude
in 1906, having completed the work for his degree in 1905. His original
intention had been to follow his father into the legal profession, but at Harvard he had
become interested in economics and decided to remain there for a further year, serving
as an assistant to Frank William Taussig, then the leading figure in American orthodox
economic^.^
In September 1906 he entered the Harvard Law School, receiving the
degrees of AM (from the Economics Department) in 1907 and LLB in 1909. Throughout
this period he continued to serve as an assistant in Economics at Harvard College, teaching
an elementary course. He also, around this time, assisted A. Lawrence Lowell, then
Professor of the Science of Government at Harvard, in the preparation of the 1908 edition
of
his book,
The Government
of
Englund.6
In 1910 he was admitted to the Illinois Bar.
Soon after this, he moved to New York City to work as a clerk in the legal department
of the American Telephone and Telegraph Company. Most of his work there centred around
what was later to be the subject of his doctoral research, the regulation of public utility
rates. In 1913, after a three month spell examining commission decisions for the National
Civic Federation, he returned to academic life to study the economics of rate regulation
at Columbia University.
Schlegel, ‘American Legal Realism and Empirical Social Science: From the Yale Experience’
(1979)
28
Buffalo
L
Rev
459-586;
‘American Legal Realism and Empirical Social Science: The Singular Case
of Underhill Moore’
(1980) 29
Buffalo
L
Rev
195-323;
and Laura Kalman,
Legal Realism at Yale:
1927-1960
(Chapel Hill: University of North Carolina Press,
1986).
The biographical information that
I
present on Hale has been amassed from the following sources: Robert
L. Hale,
Valuation and Rate-making: The Conflicting Theories
of
the Wisconsin Railroad Commission
1905-191
7,
with a Chapter on the Uncertainty
of
the United States Supreme Court Decisions, and a
Concluding Chapter
on
the Need
of
a Revised Principle
of
Utility Regulation
(PhD dissertation, Faculty
of Political Science, Columbia University, New York,
1918
[copy shelved in basement
of
John Rylands
University Library, Manchester]), p
157
(short
vita,
presumably written by Hale himself); Julius Goebel
Jr
et al, A History
of
the School
of
Law, Columbia University
(New York: Columbia UP,
1955),
pp
324-325;
Esther
L.
Brown,
Lawyers, Law Schools and the Public Service
(New York: Russell Sage
Foundation,
1948),
pp
142-145;
Anon, ‘Robert
Lee
Hale, Law Teacher,
85,’
New York Times,
September
1,
1969,
p
8;
Anon, ‘Profile: Robert Lee Hale,’
Columbia Law School News,
March
11,
1952,
p
2,4;
Anon, ‘Robert Lee Hale’
(1969)
1 1
Columbia University
School
of
Law Alumni Association Bulletin
39;
who’s
Who
in America,
volume
27
(Chicago: A.N. Marquis Co.,
1952),
p
1009;
Warren J. Samuels,
‘The Economy as a System of Power and its Legal Bases: The Legal Economics of Robert Lee Hale’
(1973) 27
U
Miami
L
Rev
261-371
at
263-267.
On Taussig and orthodox economics at Harvard,
cf
Joseph Dorfman,
The Economic Mind in American
Civilization, Volume
III:
1865-1918 (New York: Viking,
1949),
pp
264-271,431-432,478-480;
and
for Hale’s indebtedness to Taussig, see Hale, above note
4,
p
7.
A. Lawrence Lowell,
The Government
of
England,
two volumes (London: Macmillan
&
Co,
1908),
vol
I,
p vii (acknowledgement). Almost two decades later Hale was strongly to criticise Lowell for his
involvement in the infamous
Sacco-Vanzeni
trial. Hale Papers,
60
(also unnumbered folders, boxes one
and nine) contain Hale-Lowell correspondence and Hale’s ‘Sacco and Vanzetti Material.
’
4
5
6
422
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