The American Law Institute and the Triumph of Modernist Jurisprudence

TLDR

Early twentieth‑century American legal scholarship emphasized sociological, behavioralist, and functional approaches, yet the American Law Institute’s 1923 founding is rarely cited as a key moment in the rise of modern jurisprudence. The authors conclude that the American Law Institute’s early focus on restating common‑law rules does not align with the emergence of modernist jurisprudence in America.

Abstract

In most studies of the early twentieth-century emergence of a modern conception of law in America, the formation of the American Law Institute in 1923 is not highlighted. One might point to academic literature advocating a “sociological” approach to judicial decision making, or a behavioralist approach to the work of judges, or the reorganization of law school casebooks to include “functional” legal categories or social science materials. One might unpack the work of an early twentieth-century lawyer, or even a judge, and find a jurisprudential perspective that could be labeled modernist. Finally, one might note the appearance of litigation strategies—encapsulated in the term “Brandeis brief”—designed to incorporate into case decisions arguments that legal rules should reflect their social context. But one would not associate the arrival of modernist jurisprudence in America with the early history of an organization of elite lawyers and judges whose stated purpose was to commission “restatements” of black-letter common law rules.