“[T]he law is entirely unfit for the feminine mind—more so than any other subject . . . .”
—Professor Christopher Langdell (as attributed by Charles W. Eliot).
See Bruce A. Kimball and Brian S. Shull, The Ironical Exclusion of Women from Harvard Law School, 1870-1900, 58 J. Legal Educ. 26 (2008).
Professor Langdell is well-known as the progenitor of modern legal education and a chief proponent of using the Socratic method in law school classrooms. Perhaps less well-known is that, as evidenced by the statement above, Langdell considered women to be constitutionally unfit for the study and practice of law. This is the central revelation of Bruce Kimball and Brian Shull’s article, “The Ironical Exclusion of Women from Harvard Law School,” cited above.
The question: What is the significance of this concurrence of influence and belief system in such a pivotal figure?
First, to examine Langdell‘s influence on legal education. On the one hand, while it would be difficult to overstate the impact of Langdell on the controlling model for legal education, it is also possible that we take it for granted, precisely because Langdell’s vision has for so long been the norm. See id. at 3 (noting that Langdell was chiefly responsible for developing the model of professional education at Harvard Law School “that became normative in the United States during the Twentieth Century.”).
To fully appreciate Langdell’s innovation, we must consider the model that it replaced. Kimball and Shull describe the manner in which Langdell’s vision of legal education—animated by a robust if flawed theory of meritocracy—represented a radical departure from the so-called “gentlemanly” model of professional education that precede it.
In short, under the “gentlemanly” model, “access to education depended on the personal relationships developed among gentleman.” Id. at 9. As such, this model “incorporated manifest discrimination,” id., in that it openly sought to replicate the existing structures of social and economic privilege.
By contrast, under Langdell’s meritocratic model, advancement in the profession depended on the relative strength of one’s academic performance, objectively measured. In a meritocracy, “students and faculty would be uniformly evaluated by explicit, objective standards, salient to the profession, rather than by irrelevant, personal characteristics, such as social background.” Id. at 7.
For those concerned about equality of opportunity, Langdell’s meritocratic model seems to clearly represent a move in the right direction. And indeed, under this meritocratic approach, Harvard Law School admitted men from different racial, social and economic backgrounds, permitting them to prove themselves on equal footing with others. See id. at 7-8.
But Professor Langdell, along with many of his generation, had a sizable blind spot in his theory of meritocracy. Namely this: He considered women to be presumptively disqualified for the study of law. Kimball and Shull describe how Langdell repeatedly thwarted the efforts of individual women seeking admittance to the law school. As time went on, Langdell was increasingly in the minority in holding this view, but held disproportionate influence such that his view prevailed.
On the record, true to his nature, Langdell supported this decision on purely formalistic grounds. Indeed, in response to the first application for admission by a woman, Langdell essentially abstained on grounds of lack of justiciability: “Declin[ing] to express an opinion—the question not being before us.” Id. at 18. In a subsequent debate, Langdell drafted a well-reasoned memorandum submitting eight practical and precedential reasons for the law school continuing in its policy of excluding women. See id. at 21-22.
Off the record, it was a different story. According to the accounts collected by Kimball and Shull, in his oral comments on the issue, Langdell stated that “the law is entirely unfit for the feminine mind—more so than any other subject” and that women’s role in the law should be confined to performing clerical work. Id. at 26.
So here we have it. The father of legal education pitting himself categorically against the feminine mind.
In my view, there is not much either “ironic” or “ironical” about Langdell’s position. It is not surprising that a man of his time would hold such views about women. Nor is it surprising that he would fail to see any contradiction between these views and his commitments to equality, individual merit, and fairness.
As many theorists have noted, notions of equality almost inevitability have a dark underbelly. Equality is and always has been for “us,” and “we” are a group that necessarily must be defined and understood in contrast to a lesser, undeserving “them.” What changes over time is who is placed in which category.
Thus, in the context of Langdell’s vision of legal education, meritocracy was a proving ground for men, regardless of social, racial, or economic background. But this arena of intellectual jousting was obviously reserved for those equipped to its demands. This point—that the requirements of competitive meritocracy were excrutiatingly demanding—was underscored (rather than contradicted by) the exclusion of women, who by definition lacked the intellectual qualities to engage in a vigorous, “manly” combat of ideas. See id. at 29 (describing the Victorian ideal of manhood that developed in response to a perceived feminization of men).
Casting this ideal of intellectual combat in gendered terms is neither far-fetched nor invented. Harvard President Charles Eliot argued that scholarly competition promoted “masculinity,” a new word entering the language at this time. “Scholarly manliness” –achievement in a competitive academic system—was thus officially promoted as the means by which Harvard would build an ‘aristrocracy’ that was also ‘democratic’ in admitting students from any social or economic backgrounds. Id. at 29. (As an aside: The very notion of a “democratic aristocracy” is one to puzzle over.)
But it is not interesting to me that Langdell possessed the views about women that he did; this is, in fact, entirely predictable. The interesting question, in my view, is whether our contemporary model of legal education continues to quietly incubate an ideal of “manliness” and disdain for the “feminine mind” that might not comport with our other professed values.