Great Moments in the History of Ignorance & Division II

While teaching at Harvard in the early 1930s, Hugh Langdon Elsbree published a book entitled, Interstate Transmission of Electric Power: A Study in the Conflict of State and Federal Jurisdictions (Harvard 1931). Elsbree later served as the director of the Legislative Reference Service, the precursor to the Congressional Research Service. He died just two years ago, at age 100.

The relevance of Elsbree and his book is that Felix Frankfurter reviewed it for the Harvard Law Review, and in doing so, he offered some thoughts on the great divide. Frankfurter was not terribly enthusiastic about the book, complaining that Elsbree was “too awed by judicial language.” Felix Frankfurter, Book Review, 45 Harv. L. Rev. 762, 763 (1931-1932). Frankfurter was also unhappy with political scientists and economists in general. He argued that they should attend to their own responsibilities rather than those of lawyers. So here is today’s Great Moment in the History of Ignorance and Division, a call for more division:

Economists and political scientists rightly criticize law and lawyers for their formalism. Legal decisions, say our critics, are too often exercises in dialectic, and do not grow out of the soil of life. This charge finds deep sympathy in my breast. But an even greater dissatisfaction that I have with American public law decisions is the snake-like fascination that their sterile dialectic exercises over economists and political scientists. We lawyers are dependent upon these specialists for a critique of the economic, social, and political assumptions which so often underlie what purport to be technical legal doctrines. Yet, more often than not, instead of subjecting such decisions to the test of economic and political fact and wisdom, the economists and political scientists are subdued by the materials of the law and themselves become legal dialecticians.... What we have a right to expect from economists and political scientists is an analysis of what the true governmental problems are, in the light of what actually goes on in the world and wholly apart from the technicalities of American constitutional law. Only after we have such an analysis is it the function of the American lawyer either to find within the existing body of law resources adequate to reconcile law with wisdom, or, if that reconciliation is impossible, to fashion new law. Until the economists and political scientists attend to their special tasks and we lawyers to ours and each has an awareness of the others’ problems, we shall continue to have what Alvin Johnson calls the cross-sterilization of the social disciplines.

Id. at 763-64.

Tomorrow’s Great Moment: Charles Haines, another past president of the APSA, declares that political science is “no longer under the bondage of the lawyers.”

*For more on Elsbree, here are page 1 and page 2 of the tribute offered to him by Representative Robert Ney in the Congressional Record.

Comments

[William Ford]

Right, it's division without ignorance. So it is different than the division that actually developed.

Also, Frankfurter thought political scientists took the language of judicial opinions too seriously. Later, political scientists seemed to go to the other extreme, mainly focusing on outcomes and dismissing or ignoring judges' explanations.

[William Henderson]

Bill, Great passage. But I am not sure I agree with your characterization. Was Frankfurter really calling for "more of a division", as you commented in Great Moments I, or clear allocation of roles in order to produce a better dialogue?

Frankfurter says, "Only after we have such an [empirical?] analysis [by the economists and political scientists] is it the function of the American lawyer either to find within the existing body of law resources adequate to reconcile law with wisdom, or, if that reconciliation is impossible, to fashion new law. Until the economists and political scientists attend to their special tasks [of empiricism?] and we lawyers to ours and each has an awareness of the others’ problems, we shall continue to have what Alvin Johnson calls the cross-sterilization of the social disciplines."

Frankfurter wants (a) a clear division of labor, and (b) an awareness and dialogue among the disciplines. This vision hasn't come to pass. But if it had, the Great Divide would look quite different.