ABSTRACT
During the 1920s, the American Supreme Court was in the midst of profound doctrinal change. Especially during the final years of Chief Justice William Howard Taft's tenure, the Court divided sharply in its adjudication of cases arising from state and federal efforts to cope with a rapidly industrializing economy through social and economic legislation. As is often the case with the Supreme Court, the tendency in the popular histories and even in the academic literature has been to downplay the possibility of legitimate jurisprudential differences in favor of a tale of partisanship on the court. While perfect judicial impartiality is an ideal always to be hoped for but never reached, the failure to entertain the possibility of serious doctrinal disagreements ex-ante is to fail to try to understand political actors as they understood themselves. Disagreements in jurisprudence may often amount to different readings of facts, but they also often come down to differences regarding the theory of law itself. And disagreements about the theory of law, or the role of the law in the regime, must have a substantial relation to those institutions where we train our lawyers and judges: law schools. While America was in the midst of turbulent societal and economic change in the late 19th and early 20th centuries, competing theories of law and legal science were vying for preeminence in the nation's law schools. Any full understanding of the development of Supreme Court jurisprudence in the 20th century must incorporate the change in legal education that started in the late 19th. This is the start of such a study. These questions are still relevant today as we continue to argue about the legitimacy of courts passing judgment on laws duly enacted by majorities, the scope of legitimate government, and the preservation of individual rights.
