2016 Shawnee Trail Conference Recap


Held annually at campuses along the former Shawnee Cattle Trail, which ran from Missouri to Texas, the Shawnee Trail Conference brings together scholars from around the region to discuss recent scholarship and works-in-progress on topics related to American constitutionalism and American political development, thought, and history. As part of this year’s programming, University of Oklahoma Professor Andrew Porwancher gave a lunchtime talk on his research into the work and era of legal scholar John Henry Wigmore, the subject of his recently published John Henry Wigmore and the Rules of Evidence: The Hidden Origins of Modern Law, which is the second title in the University of Missouri Press and Kinder Institute’s Studies in Constitutional Democracy book series.

In building up to his primary argument regarding “networks and novelty in the ivory tower,” Prof. Porwancher unpacked the jurisprudential paradigm shift toward legal realism that figures like Wigmore (in academia) and Oliver Wendell Holmes (on the bench) helped to introduce. Specifically, by promoting a jurisprudence based on accounting for the practical consequences of law, Wigmore, Holmes, and others are often credited by scholars with helping to displace a formalist legal philosophy that, because it relied too heavily on abstraction and syllogism, failed to adjust to and remedy the inequalities created by the social, political, and economic innovations of modernity—most notably widespread industrialization.

And there is certainly some truth to this narrative. The late-19th and early-20th century courts were slow to recalibrate to modern exigencies, and, moreover, Wigmore and Holmes’ ideas on jurisprudence were consistent with broader trends in American intellectual history. Still, the suggestion of an absolute, binary opposition between legal formalism and legal realism—and the subsequent casting of Wigmore, Holmes, & Co. as pragmatic conquerors of a bloodless, conceptions-obsessed court system—are, Prof. Porwancher added, a bit overstated. Problematic in its own right, this act of overstatement, he went on to note, also exemplifies the “scholarly oedpialism” that springs from an incentive structure, like that of academia, which prizes originality and divergence at the expense of acknowledging—and sometimes at the high cost of defacing—the vast importance of “networks of intellectual patronage.”

While insistent on celebrating his own intellectual debts, Wigmore, like Pound, was no stranger to the assaults of a younger generation of legal thinkers. Both Felix S. Cohen and Jerome Frank, for example, inaccurately critiqued Wigmore for holding positions overly wedded to abstraction—a claim that, while it may have produced an “illusion of ingenuity” for Cohen and Frank, was hardly defensible given Wigmore’s wide-ranging and longstanding denunciation of exactly this jurisprudence. The problem with this kind of “scholarly oedipalism,” Prof. Porwancher noted in concluding his talk, is both practical and philosophical. In defacing their intellectual debt to Wigmore, not only were Cohen and Frank wrong in their facts. They also advanced a form of reputation building-by-divergence, still practiced today, that threatens to marginalize the immense significance of scholarly contributions like Wigmore’s 1904 Treatise on evidence, a text that, as both a practitioners bible and a profound work of legal theory, transformed the modern jury trial and, in doing so, helped the court adjust to the breakneck pace of change in early-20th century America.

A complete listing of papers delivered at the Shawnee Trail Conference, which was attended by professors and graduate students from University of Texas-San Antonio, Missouri State University, Baylor University, University of Missouri, and University of Texas-Austin, can be found here.